PEET,  Harvey  Prindle,  educator,  b.  in  Bethle- 
hem,  Litchfielcl  co.,  Conn.,  19  Nov.,  1794 ;  d.  in  New 
York  city,  1  Jan.,  1873.  His  early  life  was  spent 
on  his  father's  farm,  and  by  teaching  in  the  district 

school  he  earned  means  to  procure  his  education. 
After  graduation  at  Yale  in  1822  he  became  an 
instructor  in  the  asylum  for  the  deaf  and  dumb  in 
Hartford,  of  which  he  was  soon  made  superintend- 
ent. In  1831  he  was  appointed  principal  of  the 
institution  for  the  deaf  and  dumb  in  New  York 
city,  which  under  his  care  became  successful.  He 
resigned  the  principalship  in  1868,  but  was  emeritus 
principal  until  his  death.  For  fourteen  years  he 
was  president  of  its  board  of  directors.  Dr.  Peet 
received  the  degree  of  LL.  D.  from  the  University 
of  New  York  in  1849,  and  that  of  Ph.  D.  from  the 
National  deaf-mute  college  in  1871.  The  want  of 
suitable  elementary  books  for  deaf-mutes  led  him 
to  prepare  a  series,  which  is  now  in  general  use, 
entitled  "  Course  of  Instruction  for  the  Deaf  and 
Dumb"  (New  York,  1844-'G).  He  also  wrote 
"  Scripture  Lessons  for  the  Deaf  and  Dumb " 
(1846) ;  "  Statistics  of  the  Deaf  and  Dumb  "  (1852) ; 
"  Report  on  Education  of  the  Deaf  and  Dumb  in 
Higher  Branches"  (1852);  "Letters  to  Pupils  on 
Leaving  the  New  York  Institution  for  the  Deaf 
and  Dumb  "  (1854) ;  "  Legal  Rights,  etc.,  of  the  Deaf 
and  Dumb  "  (Utica,  1856) ;  "  History  of  the  United 
"Hates  of  America"  (New  York,  1869);  and  con- 
tributed articles  on  his  specialty  to  the  •'  American 
Journal  of  Insanity  "  and  to  the  "  American  Annals 
for  the  Deaf  and  Dumb."— His  son,  Isaac  Lewis, 
educator,  b.  in  Hartford,  Conn.,  4  Dec.,  1824,  was 
graduated  at  Yale  in  1845,  and  at  the  Union  theo- 
logical seminary  in  1849.  In  1851  he  visited  Europe 
to  study  metho'ds  of  teaching  deaf-mutes.  On  his 
return  in  1852  he  was  elected  vice-principal  of  the 
New  York  institution  for  the  deaf  and  dumb,  and 
since  1867  he  has  been  its  principal.  In  1881  he 
went  as  the  representative  of  all  the  American 
institutions  for  the  deaf  and  dumb  to  the  Inter- 
national congress  in  Milan,  Italy.  He  has  been 
active  in  shaping  the  legislation  of  the  state  of 
New  York  with  regard  to  deaf-mute  instruction, 
and  also  secured  provision  for  the  instruction  of 
children  under  the  age  of  twelve  years.  Columbia 
gave  him  the  degree  of  LL.  D.  in  1872.  He  has 
written  many  reports,  memoirs,  and  works  on  the 
education  of  deaf-mutes. — Another  son,  Edward, 
educator,  b.  in  Hartford,  Conn.,  28  May,  1826 ;  d. 
in  New  York  city,  27  Jan.,  1862,  was  graduated  at 
the  University  of  New  York  in  1847.  He  then 
visited  France,  and  on  his  return  studied  law,  and 
in  1849  was  chosen  professor  in  the  New  York 
institution  for  the  deaf  and  dumb.  He  studied 
theology  at  Union  theological  seminary,  but  never 
preached.  He  was  the  author  of  text-books  for 
mutes.  —  Another  son,  Dudley,  physician,  b.  in 
Hartford,  Conn.,  9  July,  1830;  d.  in  New  York 
city,  18  April,  1862,  was  graduated  at  Yale  in  1852, 
studied  and  practised  medicine  in  New  York,  and 
became  an  instructor  in  the  New  York  institu- 
tion for  deaf-mutes.  He  was  the  author  of  a 
"Manual  of  Inorganic  Chemistry  for  Students" 
(New  York,  1865),  which  was  revised  and  enlarged 
bv  Isaac  L.  Peet  (18681 


/ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


ON  THE 


LEGAL  RIGHTS  AND  RESPONSIBILITIES 


DEAF  AND  DUMB, 


BY 

HAEVEY  P.  PEET,  LL.D. 

PRESIDENT  OF  THE  NEW  YORK  INSTITUTION  FOR  THE  DEAF  AND  DUMB. 


Reprinted  from  the  Proceedings  of  the  Fourth  Convention. 


RICHMOND,  VA. 

C   H.  WYNNE'S  STEAM-POWER  PRESSES. 
185T. 


ON  THE 

LEGAL  RIGHTS  AND  RESPONSIBILITIES 

OF    THE 

DEAF  AND  DUMB. 


THE  questions  involved  in  this  subject  are  obviously  of  no  small 
importance,  and  it  is  remarkable  that  they  have  hitherto  received 
so  little  consideration  from  our  profession,  in  America  at  least,  and 
that  so  little  pertinent  to  the  inquiry  before  us  can  be  found  in 
English  and  American  jurisprudence.  Our  statute  books,  except 
in  provisions  for  their  education,  are  silent  respecting  the  Deaf 
and  Dumb,  and  cases  bearing  on  the  questions  submitted  to  us, 
are  rare  in  our  law  books.  In  the  French,  and  perhaps  in  the 
German  works  on  the  Deaf  and  Dumb,  and  on  medical  jurispru- 
dence, the  subject  before  us  is  more  fully  and  satisfactorily  dis- 
cussed and  illustrated,  than  it  is  in  our  own  language.  Some 
foreign  codes  also,  like  the  Roman  Code  of  Justinian,  embrace 
positive  enactments  respecting  the  Deaf  and  Dumb.  Though 
•what  was  law  in  Rome,  or  is  law  in  France  and  Germany,  is  not 
law  in  the  United  States ;  still,  as  in  the  absence  of  positive 
enactments,  we  have  to  be  guided  by  the  general  principles  of 
justice  and  jurisprudence,  it  will  be  instructive  and  useful,  as 
well  as  interesting,  to  know  what  views  of  the  several  questions 
before  us,  or  involved  in  our  subject,  have  been,  after  careful 
research  and  mature  deliberation,  solemnly  put  forth  in  other 
countries,  or  in  other  ages  of  the  world.  And  the  value  of  such 
lights  as  may  be  shed  on  our  subject  from  the  labors  of  foreign 
jurists  will  be  the  greater,  that  in  the  few  English  and  Ameri- 


can  cases  we  have,  there  seems  to  be  little  uniformity  of  prin- 
ciple. Of  statute  law,  relating  to  the  legal  rights  and  liabilities 
of  the  Deaf  and  Dumb,  we  have  found  nothing,*  and  the  com- 
mon law  remains  to  be  settled.  Let  us  hope  that  it  will  prove 
fortunate  that  its  settlement  has  been  reserved  for  an  age  of 
greater  light  and  liberality  of  sentiment,  and  of  juster  views  of 
the  peculiar  condition  of  this  exceptional  class  of  persons. 

We  find  but  very  little  respecting  the  Deaf  and  Dumb  in  any 
code  of  laws  before  the  celebrated  Code  of  Justinian,  promul- 
gated in  the   sixth  century  of  our  era,  which,   in  later  ages, 
became  the  foundation  of  most  of  our  modern  European  juris- 
prudence.    The  law  of  Moses  (the  most  ancient  code  extant) 
imposes  no  disqualifications  on  the  Deaf,  and  mentions  them 
only  to  forbid,  in  the  name  of  Jehovah,  those  impositions  on  the 
oo    unfortunate  to  which  their  infirmities  might  incite  the  vicious  or 
£jj    the  unthinking.     "Thou  shalt  not  curse  the  deaf,  nor  put  a 
>.     stumbling  block  before  the  blind,  but  shalt  fear  thy  God.     I  am 
J|    theLord."f 

AfteiL  a   diligent    search    through    the    Oriental    codes,    the 

earliest  monuments  we  have  of  jurisprudence,  very  little  was 

^     found  relating  to  this  class  of  persons,  except  among  the  laws  of 

the  Hindoos.     In   the    ordination  of  the  Pundits,   or   code  of 

>     Gentoo  laws,  whoever  was  "Deaf  from  his  mother's  womb,"  or 

whoever  was  Dumb,  was  classed  among  the  persons  incapable  of 

inheritance.     (Halked's  translation  of  the  Gentoo  laws  from  the 

.    Persian  and  Sanscrit,  London,  1776.)      Though  excluded  from 

o    inheriting,  they  were  not  however  left  unprovided  for,  but  the 

%     person  who  superseded  them  in  the  inheritance  was  bound  to 

2     support  them ;  in  the  language  of  the  ordinance,  to  allow  them 

u     clothes  and  victuals.     Whether  or  not   they  were    allowed   to 

3 

*  Since  writing  the  foregoing,  our  attention  has  been  called  to  the  laws  of 
Georgia,  which  will  be  hereafter  cited. 

f  Leviticus,  xix.  14.  It  is  somewhat  remarkable  that  the  law  of  Moses  does 
not  specify  deafness  and  dumbness  among  the  blemishes  which  disqualified  the 
sons  of  Aaron  from  serving  in  the  priest's  office.  (See  Leviticus,  xxi.  17-21.) 
Blindness,  lameness,  personal  deformity,  and  some  other  defects  were  specified; 
but  if  the  deaf,  or  even  the  idiotic  and  insane  were  excluded,  it  was  by  implica- 
tion, not  by  direct  precept.  Was  this  omission  because  these  infirmities  were^ 
less  common  in  those  days  than  they  have  become  in  later  times,  or  because  the 
mere  want  of  intelligence  would  sufficiently  prevent  the  Deaf  Mute  or  idiot  from 
claiming  the  priest's  office? 


451782 


6 

marry,  does  not  appear,  but  as  the  code  provides  that  the  sons 
of  all  those  who  are  excluded  from  the  inheritance,  may,  if  free 
from  all  objection,  inherit  the  share  to  which  their  parent  would 
be  entitled,  it  is  possible  that  the  Dumb,  or  those  "Deaf  from 
their  mother's  womb"  were  not  positively  interdicted  from 
marrying. 

It  is  usually  taken  for  granted  that,  under  the  laws  of  Lycur- 
gus,  Deaf-Mute  children  shared  the  fate  of  the  sickly  and 
deformed ;  but  this  may  be  doubted.  The  institutions  of  Lycur- 
gus  were  designed  to  form  a  nation  of  soldiers,  and  all  children 
who  were  judged  incapable  of  becoming  soldiers,  or  mothers  of 
soldiers,  were  ruthlessly  exposed  to  death ;  but  it  does  not  follow 
that  Deaf  Mates  merely  as  such,  fell  under  this  inhuman  doom. 
Seldom  deficient  in  animal  courage,  and  often  excelling  in  that 
quickness  of  eye  and  hand  so  valuable  in  a  hand  to  hand  strug- 
gle, Deaf-Mutes,  though  not  adapted  for  scouts  or  sentinels,  still 
might  have  stood  in  the  foremost  ranks  of  the  phalanx,  undis- 
tinguishable  in  battle  from  the  best  soldiers  who  possessed  hear- 
ing and  speech. 

We  can,  in  the  absence  of  any  further  positive  information  as 
to  the  laws  of  the  ancients,  easily  divine  what  the  general  prac- 
tice must  have  been,  by  considering  what  is,  at  this  day,  the 
social  condition  of  most  uneducated,  and  of  many  partially 
educated  Deaf-Mutes.  Unable  to  communicate  with  any  but 
their  immediate  relatives,  and  more  intimate  acquaintances, 
knowing  but  little  of  what  is  going  on  in  the  community,  and 
ignorant  of  statute  laws,  and  of  legal  forms  and  proceedings, 
their  degree  of  intelligence  very  seldom  correctly  appreciated, 
or  their  rights  understood,  they  remain  for  life  practically  in  the 
condition  of  children  or  minors.  If  affectionate  and  docile, 
they  remain  in  the  family,  mere  drudges — treated  we  are  happy 
to  believe,  in  most  cases  humanely  and  affectionately,  but  seldom 
receiving  that  equitable  reward  for  their  labor,  or  equitable 
division  of  inherited  property,  which  could  not  be  withheld  from 
one  knowing,  and  able  to  claim  publicly  his  rights.  If  on  the 
contrary,  they  grow  up  to  be  perverse,  suspicious,  and  of  un- 
steady habits,  the  natural  results  of  injudicious  indulgence,  they 
often  become  vagrants,  depending  for  support  on  the  compassion 
of  their  acquaintances,  or  an  occasional  days'  work,  eked  out  by 
beggary  and  theft.  In  the  former  condition  undoubtedly  the 


happiest,  the  law  never  has  occasion  to  notice  a  Deaf  Mute, 
except  in  rare  cases,  when  he  may  be  the  legal  inheritor  of 
property  so  considerable,  that  his  self-elected  guardians  may 
attempt  to  secure  it  by  means  which  other  relatives  may  think  it 
a  promising  speculation  to  call  in  question.  In  the  latter  case, 
his  transgressions,  though  we  shall  hereafter  cite  some  terrible 
exceptions,  are  seldom  greater  than  those  of  idle  boys,  and  are, 
for  the  most  part,  overlooked  through  compassion  for  his  infirmi- 
ties. Cases  sometimes  occur  in  which  uneducated  Deaf  Mutes 
evince  an  ability  to  manage  their  own  affairs,  and  even  acquire 
property  by  their  own  industry;  but  this  is  rare.  The  greater 
number  remain  by  general  consent,  as  is  the  case  with  idiots,  in 
a  state  of  perpetual  tutelage.  Hence  we  may  suppose  that,  in 
those  times  when  a  system  of  laws  and  jurisprudence  is  slowly 
forming,  while  as  yet,  each  little  community  in  the  State  deals 
with  rare  or  novel  cases  according  to  the  instincts  of  the 
national  common  sense,  Deaf  Mutes  would  be  practically  treated, 
not  according  to  any  arbitrary  rule,  made  or  intended  to  be 
made  for  the  greater  number  of  cases,  and,  of  course,  unjust  to 
the  exceptional  cases,  but  according  to  the  degree  of  intelligence 
actually  manifested  in  each  individual  case. 

Though  the  principle  just  stated  is  evidently  in  accordance 
with  reason  and  justice,  still,  in  its  practical  application,  there  is 
great  room  for  error.  The  magistrate  before  whom  such  cases 
might  be  brought,  is  seldom  well  qualified  to  judge  of  the  actual 
degree  of  intelligence  of  the  Deaf  Mute,  and  is  usually  unable 
to  interrogate  him  even  as  to  his  actual  wishes.  It  was  proba- 
bly the  occurrence  of  cases  in  which,  by  taking  the  represen- 
tations of  interested  parties  as  to  the  degree  of  intelligence,  or 
even  the  actual  purpose  of  the  Deaf  Mute,  injustice  had  been 
done,  that  prompted  the  provisions  of  the  Code  of  Justinian. 
In  this  celebrated  code,  the  Deaf  and  Dumb  from  birth,  are, 
without  exception,  and  without  regard  to  the  degree  of  their 
intelligence,  condemned  to  a  perpetual  legal  infancy.  The  code 
assumes  throughout  that  Deaf  Mutes  from  birth  are  incapable  of 
managing  their  own  affairs;  in  this  respect  being  considered  as 
on  a  footing  with  the  insane,  and  those  who  were  incapable  of 
managing  their  own  affairs  through  the  affliction  of  permanent 
disease ;  and  hence,  like  them,  were  to  be  placed  under  guardian- 
ship. Mente  captis,  et  surdis,  et  mutis,  et  qui  perpetuo  morbo 


laborant,  quia  rebus  suis  superesse  non  possunt,  curatores  dandi 
sunt.  (Digest,  lib.  i,  tit.  xxii,  De  Curatoribus,  §  4.) 

Degerando*  observes  that  the  Roman  laws,  before  the  time 
of  Justinian,  while  they  preserve  an  absolute  silence  with  regard 
to  the  Deaf  and  Dumb,  speak  often  of  those  who  are  deaf  with- 
out being  dumb,  or  dumb  without  being  deaf;  because,  no  doubt, 
persons  thus  afflicted,  being  able  to  manifest,  either  by  speech  or 
by  writing,  their  intelligence  and  their  wishes,  still  are  unable  to 
comply  with  the  legal  forms  prescribed  for  those  who  both  hear 
and  speak,  and  therefore  stand  in  need  of  exceptional  provisions 
on  the  part  of  the  lawgiver.  Those  who  were  both  deaf  and 
dumb  were  left,  as  we  have  already  remarked,  to  be  treated 
according  to  the  discretion  of  the  magistrate,  in  view  of  the  intel- 
ligence they  might  manifest.  The  probability  is,  that  the  Code  of 
Justinian  did  but  reduce  to  express  enactment  and  to  the  form 
of  a  general  rule,  what  had  previously  been  the  usual  practice. 

The  celebrated  code  in  question  furnishes,  in  its  classification 
of  the  Deaf  and  the  Dumb,  a  striking  proof  of  the  imperfect  and 
erroneous  notions  then  prevalent  respecting  Deaf  Mutes.  The 
legislator  establishes  five  classes  :  1.  The  Deaf  and  Dumb  with 
whom  this  double  infirmity  is  from  birth :  2.  The  Deaf  and  Dumb 
with  whom  this  double  infirmity  is  not  from  birth,  but  the  effect  of 
an  accident  supervened  in  the  course  of  life  :  3.  The  Deaf  person 
who  is  not  dumb,  but  whose  deafness  is  from  birth :  4.  The  in- 
dividual who  is  simply  deaf,  and  that  from  accident :  5.  Finally, 
he  who  is  simply  dumb,  whether  this  infirmity  be  in  him  con- 
genital, or  the  effect  of  an  accident.  It  is  hardly  necessary,  in 
this  age,  to  observe  that  the  third  class  existed  only  in  the  ima- 
gination of  the  legislator.  To  this  point  we  shall  again  recur. 

Different  provisions  were  made  to  suit  the  cases  of  each  of 
these  five  classes.  We  cite  the  original  on  the  first  class : 

"  Discretis  surdo  et  muto,  quia  non  semper  hujusmodi  vitia 
sibi  concurrent,  sancimus,  si  quis  utroque  morbo  simul  laboret, 
id  est,  neque  audire,  neque  loqui  possit  et  hoc  ex  ipsa  natura 
habeat,  neque  testamentum  facere,  neque  codicillos,  neque  fidei 
commissum  relinquere,  neque  mortis  causa  donationem  celebrare 
concedatur,  nee  libertatem,  sive  vindicta,  sive  alio  modo  impo- 


*  De  1'Education  des  Sourds — Muets  de  maissance,  I.  24. 


9 

nere ;  sidem  lege  tarn  masculos  quam  feminas  obedire  imperan- 
tes."  Code,  lib.  vi,  tit.  xxii,  §  10. 

Thus  we  see,  that  while  the  faculty  of  acquiring  property, 
•whether  by  inheritance  or  otherwise,  was  not  denied  to  the  Deaf 
and  Dumb,  they  were  debarred  from  that  full  control  of  their 
property  conceded  to  other  men.  It  appears,  from  the  provision 
before  cited,  that  they  could  only  buy  and  sell  by  the  aid  of  a 
curator,  or  guardian ;  and  the  law  just  cited  denies  to  them  the 
power  of  altering  the  descent  of  property,  or  of  making  a  gift, 
even  with  the  assistance  of  a  curator,  in  any  of  the  modes  re- 
cognized by  the  Roman  law.  They  could  not  make  a  will  or  a 
codicil ;  nor  create  a  trust  estate,  nor  make  a  donation  contin- 
gent on  the  death  of  the  donor,  nor  emancipate  a  slave.  But  to 
the  second  class,  those,  to  wit,  who  were  deaf  and  dumb  by  acci- 
dent, all  the  rights  were  restored  that  were  denied  to  the  first 
class,  provided  they  were  able  to  manifest  their  wishes  by 
writing. 

"  Ubi  autem  et  hujusmodi  vitii  non  naturalis,  sive  masculo, 
sive  feminse  accidit  calamitas,  sed  morbus  postea  superveniens  et 
vocem  abstulit  et  aures  conelusit :  si  ponamus  hujusmodi  perso- 
nam  literas  scientem ;  omnia  quae  priori  interdiximus,  haec  ei  sua 
manu  scribenti  permittimus." 

It  is  worthy  of  remark,  that  only  Deaf  Mutes  of  this  second 
class  are  supposed  capable  of  receiving  instruction.  Cases,  we 
cannot  doubt,  occurred  in  the  Roman  times,  as  well  as  in  our  own, 
in  which  persons  who  had  learned  to  read  and  write  in  child- 
hood, subsequently  became  deaf,  and  in  consequence  dumb.  It 
was  doubtless  to  meet  such  cases  that  the  law  before  rs  was 
framed.  But  as  in  those  times  no  cases  were  known  of  persons 
deaf  and  dumb  from  birth  becoming  able  to  read  and  write,  (lit- 
teras  scientem,}  the  legislator  does  not  even  provide  for  the  pos- 
sibility of  one  of  this  class  receiving  instruction  in  letters.  It 
was  then  held,  even  by  the  wise  and  learned,  that  Deaf  Mutes 
from  birth  were  wholly  incapable  of  instruction :  indeed,  the 
futility  of  attempting  to  instruct  them  seems  to  have  become 
proverbial ;  and  it  may  possibly  have  been  considered  by  the 
authors  of  the  Roman  Code,  that  an  exception  of  this  kind  in 
favor  of  this  class  of  persons,  might  lead  to  attempts  to  pass 
their  mere  mechanical  writing,  from  a  copy  before  them,  the 


10 

purport  of  which  they  knew  not,  for  a  valid  expression  of  their 
own  intelligent  wishes. 

It  seems  to  us  strange  that  the  authors  of  this  code  should 
*  suppose  the  dumbness  of  Deaf  Mutes  to  be  a  direct  consequence 
of  disease,  and  not,  as  we  now  know  it  to  be,  a  mere  conse- 
quence of  deafness.  "  Sed  morbus  et  vocem  abstulit  et  aures 
conclusit."  This  supposition  appears  more  prominently  in  the 
section  of  the  law  relative  to  the  third  class — those,  to  wit,  who 
were  supposed  deaf  from  birth,  yet  able  to  speak. 

"  Sin  autem  infortunium  discretum  est,  quod  ita  raro  contin- 
git ;  et  surdis,  licet  naturaliter  hujusmodi  sensus  variatus  est, 
tamen  omnia  facere  et  in  testamentis,  et  in  codicillis,  et  in  mor- 
tis causa  donationibus,  et  in  libertatibus,  et  in  omnibus  aliis  per- 
mittibus.  Si  enim  vox  articulata  ei  a  natura  concessa  est,  nihil 
prohibet  eum  omnia  qua  voluerit  facere." 

Here  the  legislator  supposes  a  class  of  persons  who  are  deaf 
from  birth,  but  who,  notwithstanding,  have  received  from  Nature 
the  gift  of  speech !  He  indeed  adds  that  this  rarely  happens, 
(quod  ita  raro  contingit ;)  but  this  mere  legislating  for  a  case 
which  we  now  know  cannot  possibly  -occur,  strikingly  shows  how 
wide  of  the  truth  were  then  the  notions  of  even  the  learned  and 
profound  concerning  the  Deaf  and  Dumb.  In  vain  had  Pliny, 
(as  the  prince  of  Greek  philosophers  had  done  before  him,)  in  a 
work  of  high  reputation,  distinctly  stated,  that  "The  man  to 
whom  the  sense  of  hearing  is  denied,  is  deprived  by  that  defect 
itself  of  the  usage  of  speech;  there  is  no  person  deaf  from 
birth  who  is  not  also  dumb."*  The  popular  opinion  that  deaf- 
ness and  dumbness  were  distinct  defects,  usually,  indeed,  found 
united,  but  sometimes  the  one,  even  if  from  birth,  existing  with- 
out the  other,  is  here  found  to  influence  the  legislation  of  an 
empire  embracing  nearly  all  the  then  civilized  world. 

We  cannot  suppose  the  counselors  of  Justinian  to  have  been 
ignorant  of  the  fact,  shown  by  constant  experience,  that  chil- 
dren learn  language  from  their  elders,  through  the  ear ;  but 
there  seems  to  have  been  a  prevalent  idea,  that  not  merely  the 
faculty  of  learning  to  speak,  but  speech  itself,  was  a  gift  of  Na- 
ture, inherent  in  man  as  a  reasonable  being,  and  that,  as  the 
first  men  possessed  language  without  having  learned  it  from 

*  Pliny,  Hist.  Nat.  x.  G9. 


11 

elders,  as  they  had  no  elders ;  so  children,  whose  organs  of 
speech  were  not  defective,  might  naturally  possess  speech, 
though  they  had  never  heard  the  speech  of  others.  It  is, 
however,  remarkable,  that  the  Roman  lawgiver  should  sup- 
pose that  this  natural  gift  of  speech  would  be  the  very  speech 
of  his  own  countrymen ;  else,  supposing  a  deaf  child  to  speak, 
how  should  it  be  understood  ?  If  it  be  supposed  that  children 
may  speak  without  having  heard  the  speech  of  others,  it  is  obvi- 
ously more  natural  to  suppose,  with  the  old  Egyptian  king, 
Psammetichus,  that  they  would  speak  the  language  of  some  pri- 
mitive race  of  men,  than  that  they  would  speak  a  language  intel- 
ligible to  those  around  them. 

This  third  regulation  is  terminated  by  an  explication  which  is 
itself  very  curious.  The  lawgiver  says  :  "  Quia  scimus  quos- 
dum  jurisperitos,  et  hoc  subtilius  cogitasse,  et  nullum  esse  expo- 
suisse,  qui  penitus  non  exaudiat,  siquis  supra  cerebrum  ejus 
loquatur,  secundum  quod  Jubentio  CELSO  placuit." 

From  this  we  learn,  that  it  was  in  those  days  held  by  some 
that  all  Deaf  Mutes  might  be  made  to  hear,  (and  it  seems  to 
have  been  assumed  that  to  hear  must  be  to  understand,)  by 
speaking  to  them  in  a  certain  manner  over  the  top  of  the  head. 
It  is  probable  that,  in  many  cases  of  partial  deafness,  this  opin- 
ion was  confirmed  by  experiment ;  but  we  may  safely  assert 
that,  though  persons  who  had  become  too  deaf  to  distinguish 
words  at  the  ordinary  distance  of  conversation  might  recognize 
them  when  thus  spoken,  Deaf  Mutes  from  birth — if  they  heard 
the  words  at  all — would  be  sensible  of  only  a  confused  noise. 
A  contrivance  that  might  enable  a  Deaf  Mute,  whose  deafness 
was  not  total,  to  hear  words,  would  no  more  enable  him  to  under- 
stand them  than  a  pair  of  spectacles,  or  the  couching  of  a  cata- 
ract, would  enable  one  to  read  who  had  not  previously  learned  to 
read.  In  some  few  cases  of  partial  deafness,  speech  might,  with 
pain  and  labor,  be  taught  by  often  speaking  to  the  Deaf  Mute  in 
the  mode  under  consideration  ;  and  in  a  greater  number  of  cases, 
it  might  enable  the  patient  to  guess  tolerably  well  at  words 
already  known ;  but  in  far  the  greater  number  of  cases,  the  de- 
gree of  hearing  thus  procured,  if  any,  would  be  much  too  feeble 
and  indistinct,  to  be  of  use  for  instruction  or  conversation  by 
vocal  speech. 

AVe  are  not  to  suppose,  however,  that  the  annexing  this  obser- 


12 

vation  to  the  law  before  us,  proceeded  from  an  idea  that  some 
Deaf  Mutes  from  birth  could  be  taught  to  speak  by  speaking  to 
them  over  the  top  of  the  head.  Nothing  of  the  kind,  so  far  as 
we  know,  was  ever  accomplished,  or  even  attempted,  in  Roman 
times.  It  is  to  be  regarded  as  only  the  manifestation  of  another 
phase  of  the  popular  notions  respecting  speech.  It  is  natural 
to  believe  that  the  furniture  of  the  minds  of  our  neighbors, 
and  the  texture  of  their  thoughts,  are  like  those  of  which  we  are 
ourselves  conscious — as  natural,  and  as  erroneous,  as  to  believe 
that  the  earth  is  at  rest,  while  the  heavenly  bodies  perform  daily 
revolutions  round  it.  Hence,  as  we  are  not  conscious  of  reflect- 
ing and  willing  otherwise  than  by  the  aid  of  words,  of  an  in- 
ternal speech,  we  conclude  that  all  rational  beings  must  pos- 
sess a  like  internal  speech.  And  our  Roman  lawgiver,  who  so 
obviously  makes  the  possession  of  verbal  language  a  test  of  in- 
telligence, supposed  that  this  faculty  of  internal  speech  might, 
in  cases  where  the  ears  are  closed,  be  reached  through  the  top 
of  the  head. 

The  general  principle  that  runs  through  the  provisions  and 
mistakes  of  Justinian's  code,  evidently  is,  that  there  can  be  no 
valid  contract  made,  or  assent  given,  except  by  means  of  words, 
spoken  or  written.  The  Deaf  Mute,  who  could  only  make  his 
will  known  by  gestures,  was  treated  like  a  child,  who  might  in- 
deed buy  and  sell  in  the  markets,  but  Avas  interdicted  from  such 
grave  acts  as  changing  the  descent  of  lands,  or  emancipating  a 
slave.  This  interdiction  is  repeated  later  in  the  Institutes : 
"  Item  surdus  et  rautus  non  semper  testamentum  facere  possunt ; 
utique  autem  de  eo  surdo  loquimur,  qui  omnino  non  exaudit,  non 
qui  tarde  exaudit ;  nam  et  mutus  is  intelligitur,  qui  eloqui  nihil 
potest,  non  qui  tarde  loquitur.  Ssepe  enim  literati  et  eruditi 
homines  variis  casibus  et  audiendi  et  loquendi  facultatem  amit- 
tunt.  Unde  nostra  constitutio  etiam  his  subvenit,  ut  certis  casis 
et  modis  secundum  normam  ejus  possint  testari  aliaque  facere, 
quae  eis  permissa  sunt."* 

Under  the  reign  of  a  code  of  laws  so  precise  and  formal,  some 
special  provision  would  have  been  necessary  to  give  legal  effect 
to  the  wishes  of  those  who,  though  profoundly  deaf,  were  still 
abla  to  speak  intelligibly,  but  not  to  write. 

*  Instit.  lib.  ii,  tit.  xii,  quibits  non  est  perm.  fac.  test. 


13 

Disqualifications  similar  to  those  of  the  Code  of  Justinian  were 
established  by  the  laws  of  the  feudal  monarchies  of  Europe  ;  and 
in  some  cases  they  even  went  beyond  the  Romans,  by  declaring 
a  deaf  and  dumb  person  incapable  of  succeeding  to  a  fief,  or 
other  inheritance.  The  Code  of  Justinian  did  not  debar  a  Deaf 
Mute  from  the  succession,  nominally  at  least,  to  an  inheritance, 
but  only  incapacitated  him  from  changing  the  descent,  so  that  it 
passed  to  the  next  legal  heir  at  his  death ;  but  the  codes  or  cus- 
toms of  some  medioeval  realms  of  Europe  (like  the  Hindoo  Code) 
set  aside  the  Deaf  Mute  altogether,  and  vested  the  inheritance 
in  the  next  heir  at  once.  Yet,  we  remark,  with  some  surprise, 
that  Carpzovius,  in  his  Definitiones  Forensas  ad  Constitutiones 
Electorates  Saxonicas,  etc.  (1663,)  after  laying  down  the  defini- 
tion, "  Mutus  et  Surdus  vel  aliter  imperfectus  in  feudo  non  suc- 
cedit,"  adds,  "  De  feudo  tamen  novo  mutum  et  surdum  vel  aliter 
imperfectum  Dominus  bene  investire  potest."  It  is  easy  to  see 
why  a  Deaf  Mute  should  be  judged  incapable  of  succeeding  to  a 
fief,  the  holder  of  which  was  not  only  bound  to  military  service 
as  a  leader  of  troops,  but  was  usually  in  his  own  territories  a 
civil  and  criminal  judge ;  but  we  should  suppose  the  same  reasons 
would  oppose  the  conferring  a  new  fief  on  a  person  in  that  con- 
dition. The  contradiction  may,  perhaps,  be  reconciled,  by  sup- 
posing that  the  former  was  the  general  rule,  and  the  latter 
designed  to  operate  as  a  rare  exception  in  favor  of  Deaf  Mutes 
of  noble  race,  who  may  have  displayed  an  intelligence  greater 
than  is  usual  in  persons  so  afflicted ;  but  this  exclusion  of  Deaf 
Mutes  from  certain  rights  of  inheritance  does  not  appear  to  have 
been  general,  else  the  provisions  to  prevent  this  class  of  persons 
from  alienating  property,  would  have  been  nearly  if  not  quite 
supererogatory. 

Having  thus  passed  in  review  all  that  we  have  found  in  ancient 
jurisprudence  respecting  the  Deaf  and  Dumb,  we  will  now  turn 
our  attention  to  the  light  in  which  they  have  been  viewed  under 
the  common  law  of  England.  The  Roman  civil  law  is  still  of 
great  authority  in  Continental  Europe,  and  the  foundation  of 
most  of  their  present  codes ;  but  the  common  law  of  England  is 
a  distinct  and  different  system,  lying  at  or  constituting  the 
foundation  of  the  jurisprudence  of  England  and  of  the  United 
States. 

In  the  treatise  of  Glanville,  supposed  to  be  the  first  elemen- 


14 

tary  work  on  the  common  law,  written  in  the  reign  of  Henry  II., 
towards  the  close  of  the  twelfth  century,  nothing  is  said  respect- 
ing the  legal  rights,  disqualifications  or  responsibilities  of  the 
Deaf  and  Dumb.  Though  this  work  is  but  a  very  loose  and 
general  summary  of  the  law  of  England,  as  it  then  existed,  it  is 
presumed  that  the  law  made  no  provisions  respecting  this  class 
of  persons ;  for  in  the  Norman  Code,  which,  after  the  Conquest, 
made  part  and  parcel  of  the  law  of  England,  but  four  impedi- 
ments to  the  succession  of  heirs  are  recognized — Bastardy,  Pro- 
fession of  Religion,  Forfeiture,  and  incurable  Leprosy.  (Le 
Grand  Custum  de  Norm.  27.)  Nearly  a  century  after  Glanville, 
in  the  reign  of  Henry  III.,  appeared  the  more  elaborate  and 
learned  work  of  Bracton  on  the  Laws  and  Customs  of  England; 
and,  in  this  treatise,  the  Deaf  and  Dumb  are  referred  to  as  a 
class  of  persons  who  are  not  entitled  to  the  same  rights  and 
privileges  as  other  subjects.  It  would  appear  from  Bracton, 
that  they  could  not  inherit  as  heirs,  or  participate  in  the  inherit- 
ance. (Bracton,  lib.  v,  De  Exceptionibus,  cap.  26,  §  3,  fol.  430 ; 
cap.  20,  §  2,  fol.  421.)  He  draws  a  distinction,  however,  be- 
tween those  who  are  Deaf  and  Dumb  from  birth,  and  those  who 
have  become  so  through  accident  or  other  cause,  after  having 
had  the  use  of  their  natural  faculties ;  and  he  says,  that  those 
who  can  hear,  though  with  difficulty,  and  those  who  have  merely 
some  impediment  of  speech,  are  not  to  be  considered  as  under 
the  legal  disabilities  existing  in  the  case  of  the  Deaf  and  Dumb 
from  birth.  Those,  he  says,  who  are  naturally  Deaf  and  Dumb 
cannot  acquire  any  thing,  or  enter  into  any  obligation  or  con- 
tract ;  for  as  they  cannot  hear  what  is  said  to  them,  or  express 
their  will,  they  cannot  give  their  consent  to  anything.  Those, 
however,  who  have  been  able  to  hear  or  speak,  but  have  lost  the 
power  by  accident,  sickness  or  other  cause,  he  places  in  a  very 
different  position.  In  their  case,  he  says,  it  is  to  be  ascertained 
who  or  what  they  were  before  the  misfortune  came  upon  them ; 
because  if  they  could  speak  and  hear,  and  give  consent  at  the 
beginning,  they  retain  all  the  acquisitions  (property)  they  may 
have  acquired,  and  may  continue  to  acquire  through  their  guar- 
dians, to  be  appointed ;  but  should  not  be  allowed,  without  great 
care  and  caution,  to  grant  or  transfer  to  another  what  they  pos- 
sess. And  he  then  declares,  that  an  inquiry  must  be  instituted 
by  the  court,  for  the  purpose  of  ascertaining  and  determining 


what  shall  be  necessary  for  maintaining  such  persons,  according 
to  their  quality  and  the  quantity  of  their  estate. 

We  will  give  the  principal  passage  upon  the  subject  from 
Bracton  in  his  own  words,  which  will  be  the  more  interesting,  as 
it  shows  that  the  law  did  not  at  that  time  admit,  or  rather  it 
denied,  the  possibility  of  the  Deaf  and  Dumb  expressing  their 
will  or  consent,  even  by  signs ;  a  state  of  things  not  remarkable, 
when  it  is  remembered  that  the  learned  Spaniard  Vives,  nearly 
two  centuries  later,  questioned,  merely  from  the  inherent  in- 
credibility of  the  thing  in  his  view,  the  statement  of  the  Heidel- 
burg  Professor  Agricola,  that  he  had  seen  a  young  man,  born 
Deaf  and  Dumb,  who  had  learned  to  understand  writing,  and  to 
note  down  his  whole  thought.  (De  Anima  of  Vives,  lib.  ii,  cap. 
De  Discendi  Ratione,  and  see  De  Inventione  Dialecticae  of  Agri- 
cola,  lib.  iii.)  The  passage  from  Bracton  is  as  follows : 

"  Competet  autem  tenenti  exceptio  peremptoria  ex  persona 
petentis,  propter  defectum  naturae  ;  ut  si  quis  fuerit  surdus  et 
mutus  naturaliter,  si  quis  omnino  loqui  non  possit  nee  audire, 
non  tamen  si  tarde  audiat,  vel  loqui  fuerit  aliquantulum  impedi- 
tus.  Et  talis  cum  naturaliter  surdus  fuerit  et  mutus,  acquirere 
non  potest  omnino,  et  cum  omnino  audire  non  possit  nee  omnino 
loqui,  voluntate  et  consensum  exprimere  non  potest,  nee  verbis, 
nee  signis.  Naturaliter  dico,  hoc  est  a  nativitate,  sicut  dicitur 
de  cseco,  qui  caecus  fuit  a  nativitate,  quia  si  hoc  aliter  alicui 
evenerit  a  casu,  inquirendum  erit  qualis  fuerit  ante  hujusmodi 
infortunium,  quia  si  loqui  potuit  ab  initio,  et  audire  et  consentire, 
per  se  et  per  procuratorem  acquiret,  et  acquisita  retinet,  sed 
tamen  de  facili  non  transfert  ad  alium  acquisita  sed  cum  surdus 
et  mutus  naturaliter  acquirere  non  possit,  per  officium  judicis  in- 
venienda  sunt  ei  necessaria  quoad  vixerit,  pro  qualitate  personae, 
et  haereditatis  quantitate,  si  haeres  esse  debuit,  et  si  semel  autori- 
tate  curatoris  acquisieret,  si  fuerit  inde  ejectus  recuperabit  per 
assisam,  sicut  minor." 

Bracton  had  carefully  studied  the  Code  of  Justinian,  and  it  is 
a  striking  proof  of  his  intelligence  and  observation  in  that  early 
age,  that  he  adopts  but  two  of  the  classifications  of  the  Roman 
lawyers,  viz :  those  with  whom  this  infirmity  is  from  birth,  and 
those  with  whom  it  is  not  from  birth,  but  the  effects  of  an  acci- 
dent supervened  in  the  course  of  life.  He  does  not  repeat  the 
absurdity  of  the  Roman  Code — of  the  possibility  of  the  faculty 


16 

of  speech  in  those  who  continue  deaf  from  birth ;  nor  class  as 
disqualified  persons  those  who  are  merely  deaf,  or  those  who  are 
only  dumb — an  omission  not  accidental ;  for  a  great  part  of 
Bracton's  work  is  a  mere  transcript  of  Justinian,  word  for  word. 
His  rejection,  therefore,  of  the  three  last  classifications  of  the 
Roman  lawgiver,  was  evidently  deliberate  and  designed.  He 
speaks  invariably  of  those  who  are  both  Deaf  and  Dumb,  and  is 
careful  to  point  out  that  a  person  is  not  to  be  included  in  that 
class,  because  he  has  a  difficulty  in  hearing,  or  an  impediment  in 
his  speech. 

In  the  next  reign,  that  of  Edward  I.,  appeared  the  work  de- 
nominated Fleta,  which  was  a  mere  appendage  to  Bracton.  The 
writer  of  this  treatise,  who  is  unkown,  for  it  takes  its  name  from 
a  fact  stated  in  the  preface,  that  it  was  composed  in  the  Fleet 
prison,  puts  the  Deaf  and  Dumb  from  birth  in  one  general  classi- 
fication with  natural  fools,  the  mad,  and  those  who  are  afflicted 
•with  general  leprosy ;  and  refers  to  them  as  an  entire  or  whole 
class,  who,  from  their  natural  defect,  cannot  acquire  nor  alienate, 
because  they  cannot  give  a  legal  consent;  but  who,  from  their 
inability  to  manage  their  own  affairs,  may  have  guardians  ap- 
pointed over  them,,  and  may  acquire  property  by  their  guardian ; 
but  the  guardian,  it  seems,  had  no  power  to  alienate  the  estate 
or  property  of  such  wards.  "  Competit  etiam  exceptio  tenenti 
propter  defectum  naturae  petentis,  vel  si  naturaliter  a  nativitate 
surdus  fuerit,  aut  mutus,  tales  enim  adquirere  non  poterunt  nee 
alienare,  quia  non  consentire,  quod  non  est  de  tarde  mutis  vel 
surdis,  quibus  dandi  sunt  curatores  et  tutores  cum  ex  casu  talis 
segritudinis  de  rebus  propriis  disponere  nesciverunt,  et  tales  per 
procurators  adquirere  poterunt,  sed  non  legitime  alienare." 
(Fleta,  lib.  vi,  cap.  40,  §  2.) 

As  the  feudal  law  stood  in  the  time  of  Bracton  and  Fleta, 
the  custody  of  idiots,  under  which  were  included  the  Deaf  and 
Dumb  from  birth,  or  those  who  became  deaf  and  dumb  in  the 
course  of  life,  was  given  to  their  feudal  lords ;  that  is,  where 
they  had  landed  property,  the  guardianship  of  their  person  and 
the  possession  of  the  estate  was  vested  in  their  lord,  the  title  or 
fee  remained  in  them  until  their  death,  and  passed  at  their  death 
to  the  next  heir  in  the  order  of  succession ;  but  during  their 
lifetime  the  possession  of  their  estate,  as  well  as  of  all  lands 
or  hereditaments  which  might  come  to  them  during  their  lives 


17 

by  purchase  or  descent,  was  vested  in  the  lord  of  the  fee  as  their 
legal  guardian.  In  consideration  of  the  enjoyment  of  their 
estate,  he  was  obliged  to  support  them  according  to  their 
quality  and  the  quantity  of  their  property;  but  beyond  what 
was  necessary  to  maintain  them,  which  was  ascertained  by  a 
judicial  inquisition,  the  rents  and  profits  of  their  estate  during 
their  lifetime  went  to  and  were  enjoyed  by  him  as  his  exclusive 
perquisite  or  right.  (Fleta,  lib.  i,  c.  11,  §  10 ;  Dyer,  302 ; 
Huit,  17  ;  Noy,  27.) 

Apart  from  the  injustice  of  giving  to  the  feudal  proprietor 
or  lord  paramount  all  the  benefits  and  profits  of  the  estates 
of  those  who  were  disabled  from  taking  charge  of  them,  except 
what  was  necessary  for  the  support  of  his  ward,  this  regulation 
led  to  a  serious  train  of  abuses,  It  held  out  to  those  grasping 
and  unscrupulous  proprietors  the  temptation  to  possess  them- 
selves of  estates  upon  the  presumed  want  of  capacity  in  the 
natural  heirs ;  and  though  the  law  required  that  the  want 
of  natural  capacity  should  be  determined  by  a  judicial  investi- 
gation, this  precautionary  measure  proved  inadequate  to  restrain 
the  powerful  barons  from  obtaining  the  control  of  estates  upon 
slight  and  insufficient  grounds.  Not  only  was  this  the  case, 
but  the  estates  were  shamefully  mismanaged,  injured  in  value, 
or  prodigally  wasted  ;  it  being  an  object  with  these  temporary 
possessors  to  get  out  of  the  estate  as  much  as  they  could  while 
they  had  the  control.  These  abuses  went  on  unconnected, 
until  a  monarch  came  upon  the  throne  who  had  both  the  will 
and  the  capacity  to  cope  with  these  feudal  tyrants,  and  restrain 
them  in  their  course  of  oppression  and  injustice.  Among  the 
many  reforms  which  distinguished  the  important  reign  of  Ed- 
ward I,  was  the  passage  of  a  law  abolishing  this  feudal  privilege, 
and  making  it  a  part  of  the  king's  prerogative  to  have  the 
custody  of  the  estates  of  those  who,  from  want  of  natural 
capacity,  were  incapable  of  managing  them.  From  a  passage 
in  Britton,  cap.  16,  Beverly's  case,  4  Coke,  125,  this  may 
have  been  originally  the  common  law  ;  and  the  right  of  pos- 
sessing themselves  of  such  estates  may  have  been  an  assump- 
tion and  encroachment  on  the  part  of  the  barons,  like  many 
of  the  feudal  privileges  which  they  claimed,  and  had  the  power 
to  enforce  in  that  age  of  baronial  supremacy.  But  the  remarks 
about  it  in  Fleta,  (lib.  6,  §  10,)  indicate  that  this  statute  was 

9 


18 

an  organic  change  in  the  law,  and  not  merely  declaratory  of 
it.  That  it  was  administered  with  uprightness  and  vigor,  is 
to  be  assumed  from  the  manner  in  which  the  laws  were  main- 
tained and  enforced  during  the  reign  of  this  powerful,  vigilant 
and  energetic  monarch.  Whether  it  had  fallen  into  disuse 
during  this  turbulent  reign  of  his  feeble  successor,  or  whether 
its  provisions  were  not  regarded  as  sufficiently  explicit,  we  are 
unable  to  say,  as  the  statute  is  now  lost;  but  in  the  reign 
of  Edward  III,  a  new  law  was  passed,  declaring  that  the  king 
should  have  the  custody  of  the  lands  of  natural  fools,  taking 
the  profit  of  them  without  waste  or  destruction,  and  should 
find  them  in  necessaries  ;  and  that  after  the  death  of  such  idiot, 
he  should  render  the  lands  to  the  right  heirs,  and  that  they 
should  not  alien  their  lands,  nor  should  their  heirs  be  disin- 
herited. (17  Edw.  Ill,  stat.  i,  c.  8.)  Lord  Coke,  in  inter- 
preting this  statute,  declared  that  it  applied  only  in  the  case 
of  idiots  a  nativitate,  (Beverly's  case,  4  Coke,  127.)  It  has 
been  shown  by  the  quotation  from  Fleta,  that  the  Deaf  and 
Dumb  from  birth  were  regarded  by  the  law  as  idiots;  and  had 
the  law  continued  so  to  regard  them,  without  qualification  or 
exception,  it  would  have  been  productive  of  endless  absurdities, 
and  led  in  many  instances  to  the  grossest  injustice.  But  it  is 
one  of  the  chief  excellencies  of  the  common  law,  that  unlike  the 
Roman  civil  law,  it  is  not  a  positive  code  of  definitions,  but 
adapts  itself  to  the  progress  of  knowledge,  rejecting  any  ab- 
surdity that  has  grown  out  of  the  ignorance  of  the  past,  and 
recognizing  as  its  principle  and  practice  whatever  becomes 
apparent  in  a  more  enlightened  condition  of  society. 

How  loosely  the  common  law,  or  the  expounders  of  it,  de- 
fined, even  two  centuries  later,  what  was  understood  in  law 
as  an  idiot,  will  appear  from  Fitzherbert's  Natura  Brevium, 
written  in  the  reign  of  Henry  VIII.  An  idiot,  says  this  writer 
is  one  that  "  cannot  number  twenty  pence,  or  tell  who  was  his 
father  or  mother,  or  how  old  he  is,  &c.,  so  that  it  may  appear 
that  he  hath  no  understanding  or  reason  what  shall  be  for  his 
profit  or  his  loss.  But  if  he  have  such  understanding  that  he 
knows  and  understands  his  letters,  and  can  read  by  teaching  or 
information  of  another  man,  then  it  seemeth  he  is  not  a  sot  nor 
a  natural  idiot."  (F.— N.  B.  233,  B.)  A  definition  which 
Lord  Tenterden  characterized  as  absurd,  or  repugnant  to  com- 


19 

mon  sense  ;  "for,"  said  that  eminent  judge,  "as  to  repeating 
the  letters  of  the  alphabet,  or  reading  what  is  set  before  him,  a 
child  of  three  years  may  do  that."  (1  Dow.  P.  C.  New  Series, 
392;  S.  C.  3  Bligh,  New  Series.)  Even  under  Fitzherbert's 
definition,  an  educated  Mute,  in  that  age,  would  not  have  been 
an  idiot.  But  such  definitions  were  of  no  practical  consequence, 
for  it  was  wisely  ordained  by  the  common  law  that  the  question 
whether  or  not  a  man  was  to  be  adjudged  an  idiot,  was  a  ques- 
tion of  fact,  to  be  determined  by  a  jury,  not  according  to  legal 
definitions,  but  as  they  found  the  fact  to  be  upon  the  testimony 
laid  before  them  ;  and  no  man  could  be  deprived  of  his  property 
or  of  the  common  rights  and  privileges  of  a  subject  upon 
that  ground,  unless  upon  "offices  found,"  as  the  old  legal 
phrase  is.  (Dyer,  25;  Moor,  4,  pi.  11;  Bacon's  Abs.  5; 
Idiot,  B.;  Skin.  5,  178.) 

That  the  Deaf  and  Dumb  from  birth  were  deemed  incapable 
of  giving  their  consent  to  any  act,  and  that  acts  done  by  them 
while  under  this  infirmity,  such  as  granting  or  conveying  any 
interest  in  their  real  estate  were  void,  was  up  to  this  period  the 
recognized  rule  of  law,  has  been  shown  by  the  writers  referred 
to.  But  in  the  very  reign  in  which  Fitzherbert  wrote,  the  law 
upon  this  point  seems  to  have  been  questioned.  In  the  thirty- 
sixth  year  of  Henry  VIII,  a  case  occurred  in  Avhich  a  son 
sought  to  avoid  a  conveyance  of  land  made  by  his  father,  upon 
the  ground  that  his  father,  in  the  language  of  the  report,  (Young 
v.  iSantj  Dyer,  56,  a.)  was  "from  the  time  of  his  birth  until 
the  day  of  his  death,  deaf  and  dumb,  and  being  so  deaf  and 
dumb,  made  a  charter  of  feoffment  of  the  land,  which  charter 
he  sealed  and  delivered  upon  the  land,  to  the  defendant.  The 
son  accordingly  brought  an  action  of  trespass  against  the  de- 
fendant for  entering  upon  the  land ;  and  the  defendant  de- 
murred ;  that  is,  denied  that  the  son  had  any  ground  of  action 
against  him,  or  had  any  right  to  the  property.  What  decision 
was  come  to  by  the  court  upon  the  interposition  of  this  de- 
murrer,— whether  they  held  that  the  defendant  had  acquired 
a  lawful  right  to  the  land  under  the  instrument  which  the  Deaf 
and  Dumb  owner  of  it  had  sealed  and  delivered  to  the  defend- 
ant,— or  whether  the  son  was  entitled  to  the  property  by  reason 
of  his  father's  incapacity  to  make  such  a  deed  of  conveyance, 
does  not  appear  from  the  report ;  but  the  case  is  referred  to, 


20 

to  show  that  the  law  was  not  at  that  time  taken  for  granted, 
but  was  at  least  doubtful  or  unsettled.  This  state  of  uncer- 
tainty seems  to  have  existed  during  the  reigns  of  Elizabeth  and 
James  I ;  for  Lord  Coke  admits  that  it  was  the  opinion  of  some, 
that  this  class  of  persons  might  express  their  consent  by  signs. 
"One,"  he  says,  that  is  deaf  and  wholly  deprived  of  his  hear- 
ing cannot  give,  and  so  one  that  is  dumb  and  cannot  speak. 
Yet  (according  to  the  opinion  of  some,)  they  may  consent  by 
signs  ;  but  it  is  generally  held  that  he  that  is  dumb  cannot 
make  a  gift,  because  he  cannot  consent  to  it.  (1  Just.  107.) 

In  the  reign  of  Charles  II,  however,  a  case  arose  in  which  the 
question  came  directly  before  the  court  for  decision ;  whether  a 
person  born  dumb  and  deaf  could  transfer  an  interest  in  lands, 
and  give  a  valid  consent  to  the  transfer  by  signs.  We  will  give 
the  case  as  it  appears  in  Carter's  Reports,  (Martha  Elyot's  case, 
p.  53.)  The  Chief  Justice,  Bridgman,  reported  that  a  woman 
came  before  him  to  levy  a  fine,  (one  of  the  modes  of  transferring 
estates  of  freehold  by  the  common  law,)  and  he  gave  to  the  court 
the  following  statement :  She  and  her  three  sisters  have  a  house 
and  land.  An  uncle  hath  maintained  and  taken  great  care  of 
her,  and  he  is  to  buy  the  house  and  land  of  them,  and  he  agrees 
to  rnantain  her,  if  she  will  pass  her  lands  for  security.  As  of 
her  intelligence,  the  sisters  say  she  knows  and  understands  the 
meaning  of  all  this.  I  demanded  what  sign  she  would  make  for 
passing  away  her  lands,  and  as  it  was  interpreted  to  me,  she  put 
her  hands  that  way,  where  the  lands  lay,  and  spread  out  her 
hands.  It  being  a  business  of  the  court,  and  for  her  own  good 
I  thought  fit  to  communicate  it  to  you.  He  then  referred  to  the 
case  of  one  Hill,  who  was  born  deaf  and  dumb,  and  was  brought 
before  Justice  Warburton  to  levy  a  fine,  but  the  judge  would 
do  nothing  until  he  had  acquainted  his  brethren.  Hill  was  ex- 
amined, and  being  found  intelligent,  Judge  TV.  took  the  fine. 
Upon  this  report  being  made  to  the  court  by  C.  J.  Bridgman-, 
Archer,  one  of  the  Justices,  said  the  rule  of  law  is  that  in  fines 
and  feoifments,  (the  usual  mode  at  that  time,  of  conveying  an 
interest  in  land,)  if  there  is  good  intelligence,  they  (Mutes)  may 
do  such  acts.  They  may  be  admitted  to  make  contracts  for  their 
good.  They  are  admitted,  upon  examination,  to  marry  and  re- 
ceive the  sacraments.  They  may  make  contracts  for  their 
persons,  why  not  for  their  estates  ?  I  conceive  that  it  may  be 


done,  and  that  your  lordship  may  take  the  fine.  The  other  two 
judges,  Tirrel  and  Brown,  agreed,  and  the  fine  was  accordingly 
taken. 

When  this  case  occurred,  the  successful  efforts  that  had  been 
made  during  the  century  preceding,  in  different  parts  of  Europe 
to  instruct  the  Deaf  and  Dumb  and  improve  their  condition,  had 
been  brought  before  the  English  public.  Half  a  century  had 
elapsed  since  Sir  Kenelm  Digby,  and  the  other  companions  of 
Charles  I,  in  his  romantic  journey  into  Spain,  had  brought  back 
'reports  of  the  marvelous  success  of  Ponce  and  Bonet  in  teaching 
Deaf-Mute  nobles  of  the  great  house  of  Velasco.  At  the  time 
of  this  decision,  Drs.  Bulwer  and  Wallis,  the  latter  a  practical 
teacher,  and  a  man  eminent  in  almost  all  kinds  of  learning,  were 
then  living.  Wallis  had  exhibited  his  pupil,  Daniel  Whalley,  be- 
fore the  Royal  Society  more  than  ten  years  previously.  Whal- 
ley, indeed,  was  not  deaf  from  birth,  but  others  of  Dr.  Wallis's 
pupils  were.  Dr.  Bulwer's  "  Philocophus,  or  the  Deaf  and 
Dumb  Man's  Friend,"  had  been  published  more  than  twenty 
years.  Holder  had  also  published  his  "  Elements  of  Speech, 
•with  an  Appendix  concerning  persons  Deaf  and  Dumb,"  in 
which  he  gave  an  account  of  the  method  he  employed,  as  early 
as  1659,  in  the  education  of  a  Deaf  and  Dumb  person.  And 
shortly  before  the  decision  now  in  question,  that  is  in  1670,  a 
letter  of  Wallis,  detailing  his  methods  of  instruction,  had  ap- 
peared in  the  Philosophical  Transactions,  and  in  the  same  year 
George  Sibscota  published  his  little  work  entitled  the  "  Deaf  and 
Dumb  Man's  Discourse."  Light  was  breaking  at  several  distinct 
points  out  of  the  night  of  darkness  that  had  so  long  involved 
the  Deaf  and  Dumb.  To  these  works,  as  well  as  to  the  per- 
sonal efforts  of  those  English  philanthropists,  the  credit  is  no 
doubt  due  for  a  more  enlightened  view  on  the  part  of  the  court 
of  the  legal  rights  and  responsibilities  of  this  class  of  persons. 

In  this  connection  we  will  refer  to  a  subsequent  case  which 
appears  to  be  the  earliest  English  adjudication  upon  the  right  of 
those  born  deaf  and  dumb  to  have  the  possession,  enjoyment 
and  management  of  their  real  and  personal  property,  where  it 
appears  to  the  court  that  they  have  the  requisite  intelligence. 

In  1754,  a  woman  born  deaf  and  dumb,  upon  arriving  at  the 
age  of  21  years,  applied  to  the  Court  of  Chancery  for  the  pos- 
session of  her  real  estate,  and  for  the  enjoyment  of  her  personal 


22 

estate,  (it  is  presumed  that  she  had  been  previously  under  the 
control  of  a  guardian.)  Upon  her  appearing  before  the  Chan- 
cellor, Lord  Hardwicke,  he  put  questions  to  her  in  writing,  and 
receiving  suitable  answers  to  them  in  writing,  he  ordered  her  ap- 
plication to  be  granted.  (Dickinson  v.  Blisset,  1  Dickens,  168.) 
After  the  passage  of  the  statute  of  Edward  III,  referred  to 
on  a  previous  page,  it  became  usual  for  the  king  to  grant  the 
custody  of  the  estates  of  idiots  to  some  person,  who  thereby  be- 
came entitled  to  the  same  privileges  and  powers  which  the  king 
enjoyed  under  the  statute,  that  is,  the  possession  of  the  estate, 
and  the  enjoyment  of  the  rents  and  profits  upon  the  condition  of 
supporting  the  idiot.  These  grants,  which  were  made  for  a 
bonus  or  consideration,  became  and  continued  for  centuries  to 
be  one  of  the  sources  of  the  royal  revenue ;  and  the  power  thus 
conferred  upon  these  grantees  or  guardians,  came  in  time  to  op- 
erate injuriously  upon  such  estates,  as  the  guardianship  of  the 
feudal  barons  had  formerly  done.  (4  Inst.  203.)  So  great  was 
the  hardship  upon  private  families,  that  in  the  reign  of  James  I, 
it  was  proposed  to  vest  the  custody  in  the  relatives  of  the  party, 
and  settle  an  equivalent  upon  the  crown  in  place  of  it.  But  an 
abuse  Avhich  yielded  so  much  revenue  to  the  crown  was  not  easy 
of  removal,  and  it  remained  uncorrected  till  the  breaking  out  of 
the  revolution  of  1640,  since  which  time  the  crown  has  always 
granted  the  surplus  profits  of  an  idiot's  estate  to  some  of  his 
family.  (1  Ridley  P.  C.  519.)  From  the  time  of  Henry  VIII, 
the  administration  of  such  estates  was  vested  in  a  Court  of 
Wards.  This  court  was  abolished  in  the  reign  of  Charles  II, 
and  its  authority  over  such  matters  then  vested  in  the  Court  of 
Chancery.  And  the  right  of  directing  the  control  and  adminis- 
tration of  such  estates  has,  in  England,  remained  in  the  Court  of 
Chancery  until  the  present  time.  Whether  or  not  a  man  is  an 
idiot,  incapable  of  managing  his  affairs,  is  ascertained  by  a  writ, 
de  idiotd  inquirendo,  which  must  be  tried  by  a  jury  of  twelve 
men.  To  prevent  abuse,  the  finding  may  be  reviewed  in  the 
Court  of  Chancery,  and  the  alleged  idiot  brought  before  the  Chan- 
cellor for  inspection,  who  if  he  is  not  satisfied  that  the  finding 
is  correct,  may  discharge  the  whole  proceeding.  If  he  is  satis- 
fied of  its  correctness,  he  appoints  a  person  to  take  charge  and 
manage  the  estate,  who  acts  always  under  the  supervision  and 
control  of  the  Chancellor. 


23 

In  this  country  this  power  is  most  usually  vested  in  the  courts 
of  equity,  and  though  there  are  different  regulations  in  different 
States,  the  general  mode  of  proceeding  is  essentially  the  same 
as  in  England. 

The  result  of  this  examination  of  English  common  law,  as  the 
foundation  of  American  law,  is,  that  the  Deaf  and  Dumb  have 
ever  possessed  the  same  rights  of  inheritance  as  those  who  are 
not  deaf  and  dumb :  and,  like  the  latter,  are  restricted  in  the 
full  enjoyment  of  such  rights  only  upon  proof  of  the  want 
of  the  requisite  intelligence.  This,  also,  we  believe,  is  the 
case  throughout  Europe ;  the  old  feudal  codes  having  mostly 
passed  away.  As  to  what  would  be  deemed  satisfactory  proof 
of  the  requisite  intelligence,  there  is  evidently  room  for  much 
diversity  of  opinion ;  and  different  decisions  may  be  given  in 
similar  cases,  according  to  the  degree  of  intelligence  and  free- 
dom from  prejudice  of  the  judge  or  jury.  In  such  cases,  in- 
deed, the  intelligence  of  the  judge  has  often  more  to  do  with 
the  decision  than  the  intelligence  of  the  Deaf  Mute. 

We  will  next  consider  whether  a  Deaf  Mute  can  make  a  valid 
will.  Evidently,  a  person  deprived  of  the  control  of  his  pro- 
perty during  his  lifetime,  cannot  consistently  be  permitted  to 
alienate  it  from  the  legal  heirs  at  his  death.  Tho  Roman  law 
on  this  point  we  have  already  cited.  The  English  law  would  de- 
cide this  question  according  to  the  actual  intelligence  manifested. 
Other  European  codes,  more  influenced  by  the  spirit  of  the  Ro- 
man law,  exact  formalities  which  only  Deaf  Mutes  able  to  write 
can  comply  with.  In  France,  a  Deaf  Mute  able  to  read  and 
write,  is  admitted  on  all  hands  to  be  competent  to  make  a  valid 
will,  writing,  signing  and  dating  it  with  his  own  hand,  conform- 
ing in  this  to  the  spirit  of  the  Roman  law,  and  avoiding  the  ig- 
norant exclusion  of  Deaf  Mutes  from  birth  from  the  possibility 
of  education.  It  is  required,  however,  that  "  the  judges  should 
have  positive  proofs  that  the  Deaf  Mute  testator  had  exact  no- 
tions of  the  nature  and  effects  of  a  testament ;  that  reading  was 
in  him  not  merely  an  operation  of  the  eyes,  but  also  an  opera- 
tion of  the  understanding,  giving  a  sense  to  the  written  charac- 
ters, and  acquiring  by  them  knowledge  of  the  ideas  of  another ; 
that  writing  was  the  manifestation  of  his  own  thoughts ;  that,  on 
the  whole,  the  testamentary  dispositions  were  such  as  showed  the 


24 

effect  of  an  intelligent  will — and  these  proofs  are  at  the  charge 
of  the  person  to  whose  benefit  the  will  is  made."* 

From  this  statement,  taken  from  a  standard  French  work,  it 
appears  that,  whereas  in  ordinary  cases,  every  person  of  lawful 
age  is  considered  competent  to  make  a  will  till  the  contrary  is 
proved,  a  Deaf  Mute,  on  the  other  hand,  is  considered  incompe- 
tent till  his  competency  is  proved. 

Piroux  records  a  case  in  which  the  holograph  will  of  a  Deaf 
Mute,  Theresa  Charlotte  Lange,  was,  in  August,  1838,  annulled 
by  the  Tribunal  of  Saint  Jean  d'Angely,  on  the  ground  that, 
though  it  was  not  contested  that  the  will  was  written  by  the  own 
hand  of  the  testatrix,  yet  there  was  no  evidence  that  she  could 
use  writing  to  express  her  own  ideas,  but,  on  the  contrary,  evi- 
dence that  she  could  only  express  herself  by  signs.  As  this 
case  was  an  important  one,  and  seems  to  have  been  argued  at 
much  length,  and  carefully  considered  by  the  court,  we  will  give 
an  abstract  of  the  points  in  which  the  judgment  was  founded  :f 

"  The  heirs  have  not  denied  that  the  characters  which  com- 
pose the  material  body  of  the  document  purporting  to  be  the 
testament  of  Theresa  Charlotte  Lange  were  the  work  of  her 
hand,  but  maintained  that  they  could  not  be  the  work  of  her  in- 
telligence ;  hence  that  there  was  no  occasion  for  a  verification  of 
the  hand-writing,  or  for  enquiring  at  whose  charge  such  verifica- 
tion should  be. 

"  No  provision  of  law  places  the  Deaf  Mute  in  any  exceptional 
case  as  to  the  capacity  of  making  a  will ;  he  possesses  the  com- 
mon rights  of  other  men ;  and  therefore  can,  like  the  generality 
of  citizens,  bequeath  or  give  away  property,  provided  he  com- 
plies with  the  formalities  exacted  by  law. 

"  If,  in  consequence  of  his  infirmity,  he  cannot  make  a  will  by 
acte  publique,^  he  cannot,  at  least,  when  he  knows  how  to  write, 

*  Piroux'  Journal,  L'ami  des  Sourds-Muets,  tome  1,  p.  5,  taken  from  Le 
Dictionnaire  de  Legislation  usuelle,  published  in  1835  by  M.  Chabrol  Chamdane. 

f  Piroux'  Journal,  tome  i,  p.  109-112.  We  have,  in  making  the  translation 
here  given,  omitted  the  legal  attendu  que,  which  in  the  original  begins  each 
paragraph. 

J  Dictating  the  provisions  of  a  will  publicly,  in  the  presence  of  witnesses,  to 
a  notary  public,  who,  after  writing  it  down  from  this  dictation,  reads  it  to  the 
testator,  and  attests  his  signature  and  acknowledgment.  The  French  Code  re- 


25 

when  he  can  manifest  his  will  in  an  unequivocal  manner,  contest 
his  ability  to  make  a  holographic  or  a  mystique  testament ;  this 
is  a  point  on  which  there  is  now  no  difficulty. 

"  To  be  valid,  the  holographic  testament  must  be  written, 
dated  and  signed  bt  the  hand  of  the  testator. 

"In  ordinary  language,  and  in  the  strict  acceptation  of  the 
term,  it  is  true  that  to  write  may  be  understood  to  trace  on 
paper  letters  or  characters,  no  regard  being  had  to  their  signifi- 
cation. 

"  But  in  the  eyes  of  the  law,  and  in  its  more  extended  accep- 
tation, this  expression  has  a  very  different  sense ;  and  it  is  evi- 
dent that  in  a  matter  of  such  importance  as  making  a  will,  to 
write  most  evidently  cannot  be  understood  of  the  purely  me- 
chanical act  which  consists  in  copying,  instinctively  or  by  imita- 
tion, characters  that  have  been  placed  before  one's  eyes,  and  of 
which  the  copier  does  not  know  the  use  or  meaning ;  that  to 
know  how  to  write  is  to  be  able  at  once  to  conceive,  collect,  ar- 
range one's  thoughts,  put  them  in  form  and  express  them  on 
paper  by  means  of  certain  conventional  characters  ;  and  conse- 
quently, it  is  much  more  an  operation  of  the  mind,  a  work  of 
the  intelligence,  than  a  labor  of  the  hand. 

"  Whence  it  follows,  that  to  know  how  to  write  in  the  true  ac- 
ceptation of  the  word,  it  is  indispensable  to  know  the  significa- 
tions of  words,  to  comprehend  the  relations  which  they  have, 
the  objects  and  ideas  which  they  represent ;  that  thus  to  estab- 
lish that  an  individual  knows  or  knew  how  to  write,  it  is  not 
enough  to  produce  a  sample  of  characters  placed  one  after  ano- 
ther ;  this  would  only  prove  that  he  had  been  habituated  to  fig- 
ure letters,  or  to  draw ;  but  it  is  necessary  to  prove  that  he 
has  received,  whether  in  a  public  institution  or  by  the  care  of 
capable  persons,  the  education  necessary  to  attain  this  result ; 
this  is  above  all  true  when  the  question  is  of  a  Deaf  Mute  from 
birth,  who,  deprived  of  two  organs,  so  essential  as  hearing  and 
speech,  whatever  natural  genius  and  capacity  he  might  have 

quires  that  the  testator  should  dictate  the  provisions  of  the  will  viva  voce,  and 
should  hear  it  lead;  expressions  which,  if  taken  literally,  would  preclude  all 
Deaf  and  Dumb,  or  even  merely  Deaf  persons,  from  this  mode  of  making  a  will, 
a  mode  evidently  designed  to  assure  certainty  in  drawing  up  the  wills  of  illite- 
rate persons.  Some  respectable  lawyers,  however,  argue  that  the  spirit  of  the 
law  would  be  complied  with  by  dictating  and  reading  in  signs. 


26 

otherwise,  has  so  many  difficulties  to  overcome  in  order  to  de- 
velop, or  rather  to  form,  to  re-temper  his  intelligence. 

"  When  such  a  proof  becomes  necessary,  it  is  without  doubt 
incumbent  on  the  party  who  would  have  the  benefit  of  a  writing 
attributed  to  a  Deaf  Mute ;  in  this  matter  Jhe  general  rule  is, 
the  state  in  which  nature  has  placed  the  individual  afflicted  with 
dumbness  and  deafness ;  the  exception  is,  the  modification  or 
amelioration  wrought  in  that  state  :  the  presumption  of  law  is, 
that  the  Deaf  Mute  is  illiterate,  and  the  fact  to  be  proved,  that 
he  has  been  brought  out  of  his  ignorance  by  education — which 
is  consequently  to  be  proved  by  him  who  alleges  this  fact,  or 
claims  the  exception. 

"Therese  Charlotte  Lange  was  born  deaf  and  dumb.  No- 
thing offered  in  evidence  shows  her  to  have  been,  whether  in 
youth  or  at  a  more  advanced  age,  placed  in  an  establishment 
consecrated  to  the  special  education  of  those  unfortunate  per- 
sons afflicted  like  her  with  this  double  and  deplorable  infirmity. 
It  is  alleged,  indeed,  that  on  her  arrival  in  France,  she  was,  as 
well  as  her  sister  Rose,  also  deaf  and  dumb  from  birth,  received 
by  the  Abbe"  Hardy,  then  vicar-general  of  the  bishoprick  of 
Saintes,  and  that  this  ecclesiastic,  devoting  himself  wholly  to 
the  care  of  their  education,  had  taught  them  to  read  and  to 
•write ;  but  no  proof  of  this  fact  is  to  be  found  in  the  documents 
produced  in  the  case :  the  only  piece  which  has  been  adduced  in 
support  of  these  allegations,  the  acte  of  19th  September,  1789, 
far  from  justifying  them,  seems  to  prove  the  contrary. 

"  In  effect  it  results  from  this  acte,  that  one  of  the  ancestors 
of  the  plaintiffs  had  wished  at  that  time  to  withdraw  the  demoi- 
selles Rose  and  Charlotte  Lange  from  under  the  guardianship  of 
the  Vicar  Hardy,  in  order  that  they  should,  as  he  said,  re-enter 
the  bosom  of  their  family ;  and  it  was  only  by  gestures  and 
signs  that  Therese  Charlotte,  particularly,  manifested  her  oppo- 
sition, and  her  refusal  to  adhere  to  the  demand  of  the  Sieur  D. 
F.  Desportes.  Four  witnesses,  whose  communications  with  the 
demoiselles  Lange  were  frequent,  were  on  this  occasion  called  in 
to  assist  at  this  declaration  in  mimic  language,  and  to  interpret 
the  signs  by  which  they  made  known  their  resolutions ;  all  these 
circumstances  are  such  as  to  give  a  strong  suspicion,  in  spite  of 
the  physical  fact  (fait  materiel)  of  the  apposition  of  the  signa- 
ture of  Charlotte  Lange  at  the  bottom  of  the  protestation,  which 


27 

was  written,  as  is  mentioned  in  the  acte  itself,  by  Rose  Lange — 
that  signs  were  the  only  means  she  knew  to  manifest  her  will  or 
wishes. 

"From  this  epoch  to  that  of  her  marriage  in  1821,  nothing  is 
shown  which  could  tend  to  invalidate  this  conclusion.  If  it  is 
alleged  that  she  had  a  great  facility  to  divine  the  signs  addressed 
to  her,  and  to  make  herself  understood  by  means  of  gestures  by 
those  with  whom  she  was  habituated  to  communicate,  that  fact 
may  prove  that  by  a  just  compensation,  nature  had  endowed  her 
with  a  remarkable  instinct  and  .penetration,  but  not  destroy  the 
presumptions,  weighty,  precise  and  consistent,  which  result  from 
the  other  circumstances  of  the  case;  because  these  presumptions 
are  yet  farther  justified  by  the  fact  that  she  appears  to  have 
made  no  use  of  writing,  which  ought,  however,  to  have  been  one 
of  the  easiest  and  surest  means  of  communication  with  her 
relatives  and  friends. 

"These  presumptions,  already  so  strong,  become  certain 
proofs  when,  in  the  most  solemn  circumstance  of  her  life,  at  the 
epoch  of  her  marriage  with  the  Sieur  Hardy  in  1821,  we  see 
Therese  Charlotte,  in  order  to  accomplish  this  marriage,  forced 
on  one  part  to  have  recourse  to  the  Gf-arde  des  Sceaux  (Keeper 
of  the  Seals,)  to  obtain  an  authorization  to  this  effect,  because  of 
the  impossibility  in  which  she  found  herself  to  express  her 
consent;  and  orr  the  other  side,  obliged  to  employ  an  interpreter 
to  transmit  to  the  public  officer  the  consent  which  she  gave  as  is 
mentioned  in  the  acte  civile,  (the  civil  part  of  the  contract  of 
marriage)  by  signs,  showing  her  intelligence  by  conversation  on 
all  sorts  of  subjects,  when  it  had  been  so  easy  for  her  to  avoid 
all  these  difficulties  by  giving  her  consent  in  writing,  if  in  fact 
she  knew  how  to  write. 

"  Hence  there  can  be  no  doubt  that  at  the  epoch  of  her  mar- 
riage with  the  Sieur  Hardy,  Charlotte  Lange,  then  aged  sixty- 
five  years,  did  not  know  how  to  write,  and  it  is  difficult  to  admit 
that  she  could  have  learned  since ;  moreover  no  proof  has  beeu 
offered  on  that  point." 

"It  must  be  concluded,  from  all  these  facts,  that  evidently,  if 
the  acte  called  her  testament,  materially  emanated  from  her,  it 
is  not  the  work  of  her  intelligence,  and  that,  in  this  point  of 
view,  it  cannot  be  valid  in  the  eye  of  the  law." 

The  testament  dated  7th  August,  1834,  and  enregistered  8th 


28 

August,  1836,  was  accordingly  declared  null.  The  plaintiffs, 
M.  M.  Desportes,  having  offered  a  liberality  of  12,000  francs  to 
the  defendant  and  legatee  Hardy,  the  latter  acquiesced  in  the 
judgment;  a  fact  that  induces  a  suspicion  that  the  decision  of 
the  court  was  not  considered  altogether  conclusive,  and  that 
there  was  some  possibility  of  a  different  ruling  by  a  higher 
tribunal;  or  at  least  doubt  enough  to  encourage  the  defendant 
to  prosecute  an  appeal,  if  not  bought  off. 

The  reader  will  observe  that,  in  this  case,  the  general  intelli- 
gence of  Therese  Charlotte  Lange,  and  her  competency  to  make 
her  wishes  distinctly  known  by  signs,  were  not  called  in  question. 
The  only  question  was  whether  she  could  read  and  write  with 
sufficient  understanding  to  write  her  own  will,  with  a  full  know- 
ledge of  its  provisions  and  their  effect.  In  this  point  of  view, 
we  are  not  prepared  to  dispute  that  the  decision  of  the  court 
was  correct.  It  is  probable,  from  the  facts  shown  in  the  case, 
that  though  Therese  Charlotte  might  have  had  some  idea  of 
the  meaning  of  simple  sentences,  those  about  her  and  possessing 
her  confidence,  might  have  placed  almost  any  instrument  before 
her  to  copy  as  her  own ;  she  would  have  had  to  rely  on  their 
interpretation  in  signs  for  its  purport.* 

We  have,  however,  to  object  to  the  reasoning  of  the  judgment 
before  us  on  one  or  two  points.  It  is  by  no  means  true  that  a 
Deaf  Mute  who  has  been  taught  to  read  and  write,  however 
expert  he  may  be,  finds  writing  "the  easiest  and  surest  means  of 
communication  with  his  relatives  and  friends."  In  most  cases, 
on  the  contrary,  the  relatives  and  friends  of  an  educated  Deaf 
Mute  find  it  much  easier  to  learn  to  communicate  with  him  by 
signs,  than  to  suffer  the  tediousness  and  other  inconveniences 
of  having  to  write  every  communication.  And  there  are  few 
Deaf  Mutes  from  birth,  however  well  educated,  who  do  not 
understand  signs  skilfully  made,  more  easily  and  readily  than 
writing. 

We  may  further  remark  that  a  Deaf  Mute  who  uses  written 
language  so  imperfectly  that  he  prefers  to  express  himself  by 


*  It  is,  however,  to  be  observed  that  illiterate  people  generally  have  but  a 
confused  idea  of  the  meaning  and  force  of  legal  phraseology,  and  are  about  as 
much  dependant  as  a  half-educated  Deaf  Mute  on  the  integrity  of  their  men  of 
business. 


signs,  may  yet  have  a  fair  idea  of  the  meaning  of  what  he 
reads  or  copies.  Whether  this  last  was  the  case  with  Charlotte 
Lange,  the  evidence  before  us  does  not  show. 

Under  this  decision,  and  others  of  the  same  tenor,  it  seems 
that,  in  France,  an  uneducated  or  imperfectly  educated  Deaf 
Mute  cannot  make  a  valid  will  at  all.  As  it  is  certain  that 
there  are  some  uneducated,  and  many  partially  educated,  Deaf 
Mutes  who  are  perfectly  competent  to  manage  their  own  affairs, 
and  as  fully  aware  of  the  nature  and  effects  of  a  testament  as 
illiterate  speaking  persons  generally  are,  it  must  be  considered 
as  a  defect  of  the  law,  if  they  are,  by  consequence  of  the 
formalities  exacted,  precluded  from  disposing  by  will  of  pro- 
perty perhaps  acquired  by  their  own  industry.  The  reason 
given  by  Pothier,  that  "signs  are  too  equivocal  to  authorize  the 
declaring  one's  last  will  in  this  mode,"  is,  as  the  distinguished 
Deaf-Mute  Professor  Berthier  well  observes,  very  contrary  to 
the  fact,  so  far  at  least  as  concerns  the  signs  used  by  Deaf 
Mutes  of  fair  intelligence,  who  have  been  accustomed  to  com- 
municate freely,  like  Charlotte  Lange,  with  those  around  them. 
Berthier  has,  with  equal  zeal  and  ability,  repeatedly  brought 
this  and  other  points  on  which  he  conceives  injustice  has  been 
done  to  his  unfortunate  brethren,  to  the  notice  of  the  French 
Legislature.  If  he  has  failed  to  obtain  a  modification  of  the 
code  in  their  favor,  it  seems  to  have  be<m  not  so  much  from  any 
want  of  appreciation  of  the  justice  of  his  complaints,  as  because 
more  liberal  principles  of  interpretation  were  beginning  to 
prevail  in  the  French  courts,  by  which  the  necessity  of  special 
legislation  is  probably  superseded. 

The  evidence  of  this  change  of  views  among  French  juriscon- 
sults is  found  in  a  case  recorded  in  Morels'  "  Annales  des  Sourds- 
Muets  et  des  Avengles,"  tome  i.  (1844,)  pp.  164-179:  "The  Sieur 
Clergue,  Deaf  Mute,  not  knowing  how  either  to  read  or  write, 
appeared  (in  1835)  before  M.  Dubosq,  notary,  assisted  by  his 
mother  and  his  niece,  and  in  presence  of  several  witnesses,  who, 
by  their  relations  with  the  Deaf  Mute,  were  able  to  understand 
his  signs.  He  declared  in  a  language  understood  by  all  present, 
that  he  gave  the  ownership  of  all  his  property  to  the  Sieur  Pierre 
Clergue,  his  nephew,  on  condition  that  the  latter  should  provide 
for  all  his  necessities  during  his  life.  The  acte  drawn  up  by  the 
notary  Avas  read  to  those  present,  and  explained  in  mimic  Ian- 


30 

guage  to  the  Sieur  Clergue,  who  manifested,  by  very  intelligible 
signs,  that  the  notary  had  faithfully  expressed  his  mind." 

"After  the  death  of  the  Sieur  Clergue,  in  1839,  his  heirs  at- 
tacked the  donation,  as  emanating  from  an  incapable  person. 
They  founded  their  case  principally  on  this,  that  a  Deaf  Mute, 
who  does  not  know  how  to  read  and  write,  not  being  permitted, 
by  the  terms  of  the  French  Civil  Code,  (article  936,)  to  accept 
a  donation  without  the  assistance  of  a  curateur,*  should  have,  a 
fortiori,  need  of  this  assistance  to  express  his  own  consent  to  a 
donation  of  his  property."  To  which  it  was  replied,  that  it  was 
easier  to  know  what  one  gives,  than  to  understand  what  one 
binds  one's-self  to  in  accepting  a  donation ;  that  the  rule  of  the 
code  was  not  designed  as  a  rule  of  capacity,  but  for  the  advan- 
tage of  the  Deaf  and  Dumb,  enabling  all  to  accept  donations, 
and  leaving  those  who  possessed  sufficient  intelligence  to  make 
them. 

The  case  was  carried  from  court  to  court,  till  it  reached  the 
court  of  the  last  resort,  the  Cour  de  Cassation;  and  by  each 
tribunal  before  which  it  was  taken,  the  donation  was  sustained. 
The  grounds  of  this  decision  were  mainly  these : 

"In  general,  every  person  can  make  a  contract,  unless  ex- 
pressly incapacited  by  law ;  incapacities  should  be  strictly  con- 
strued, and  were  not  to  be  extended  beyond  the  letter  of  the 
law."  The  authors  of  the  civil  code  (following,  according  to 
their  published  debates,  the  expressed  opinion  of  the  First  Con- 
sul himself  on  that  point,)  had  expressly  refused  to  deny  the 
faculty  of  contracting  marriage  to  Deaf  Mutes,  even  if  illiterate, 
leaving  the  tribunals  to  judge  from  their  signs,  whether  they 
possessed  the  degree  of  intelligence  necessary  to  a  valid  consent, 
and  had  expressed  such  a  consent ;  and  this  faculty  of  contract- 
ing marriage  involves  the  very  principle  in  question  in  this  case, 
that  of  making  a  donation  inter  vivos,  (a  gift  of  one's  property 
in  one's  lifetime.)  Since  the  success  that  has  attended  the  efforts 
to  educate  them,  Deaf  Mutes  can  no  longer  be  considered,  as 
they  are  by  the  Roman  Code,  as  being  generally  wanting  in  the 
intelligence  necessary  for  managing  their  own  affairs ;  the  facts 
and  circumstances  proved  that  the  Deaf  Mute  Clergue  had  the 


*  The  acceptance  of  a  formal  donation,  on  account  of  the  onerous  conditions 
sometimes  annexed,  requires  caution  and  intelligence  in  the  donee. 


31 

capacity  necessary  for  making  a  contract,  and  that  he  could  put 
himself  in  communication  with  the  notary  and  the  assistants, 
(those  present,)  in  such  a  manner  as  to  leave  no  douht  of  his 
intentions  or  of  his  will. 

It  is  evident,  that  if  a  Deaf  Mute  has  the  capacity  to  make  a 
valid  donation  of  his  property  in  his  lifetime,  by  an  instrument 
drawn  up  from  his  signs,  and  acknowledged  by  him  by  means  of 
signs,  he  must  be  equally  capable  of  making  a  will  in  some 
similar  mode.  Granting  him  the  former  capacity,  it  must  be 
absurd  to  refuse  him  the  latter.  The  difficulties  are  merely  mat- 
ters of  form,  which  will  doubtless  be  got  over,  when  the  principle 
is  once  admitted. 

In  English  and  American  laws,  the  distinctions  of  the  French 
law  between  the  different  sorts  of  wills  (the  testament  olograph, 
the  testament  par  acte  publique,  &c.)  do  not  exist.  The  circum- 
stance of  a  will  being  written  wholly  by  the  testator's  own  hand, 
does  not  make  it  valid,  if  the  required  forms  of  attestation  before 
the  legal  number  of  witnesses  were  not  complied  with.  The 
Surrogate  of  New  York  observes:  "No  particular  form  is  re- 
quisite ;  all  that  the  law  requires  is,  that  the  testator  shall  com- 
municate to  the  witnesses  that  it  is  his  will,  and  that  he  desires 
them  to  attest  it.  This  can  be  done  by  reading  and  other  acts 
performed  by  a  third  person,  pro'vided  an  intelligent  assent  on 
the  part  of  the  testator  be  shown.  Indeed,  not  a  word  need  of 
necessity  be  said.  A  Deaf  Mute  might  go  through  all  the 
ceremony  l>y  means  of  a  written  communication"  *  Of  course, 
this  refers  only  to  the  case  of  a  Deaf  Mute  able  to  read  and 
write. 

We  have  not  been  fortunate  enough  to  find  any  English  or 
American  case  in  which  the  validity  of  a  will,  made  by  a  Deaf 
Mute,  came  in  direct  question ;  but  opinions  bearing  upon  the 
point  before  us,  have  been  incidentally  put  forth  by  the  very 
eminent  jurist,  Surrogate  Bradford,  of  New  York,  whom  we  have 
just  cited.  He  declared,  (in  Wier  v.  Fitzgerald,  2  Bradford's 
Reports,  42,)  that  the  law  does  not  prohibit  a  deaf,  dumb  or 
blind  person  from  making  a  will;  that  the  defects  of  the  senses 
do  not  incapacitate,  if  the  testator  possesses  sufficient  mind  to 


*  Bradford's  Reports,  265. 


32 

perform  a  valid  testamentary  act;  and  after  reviewing  the  provi- 
sions in  the  Code  of  Justinian,  and  the  rule  as  stated  by  Black- 
stone,*  that  those  born  deaf,  dumb  and  blind  are  incapable  of 
having  animum  testandi,  and  that  their  testaments  are  void,  as 
they  have  always  wanted  the  common  inlet  of  understanding ; 
he  says  that  this  rule  was  necessarily  qualified  by  the  reason  of 
it,  which  was  a  presumed  want  of  capacity ;  and,  of  course,  in 
any  case  where  it  appears  as  matter-of-fact  that  there  was 
sufficient  capacity,  the  reason  of  the  rule  no  longer  applies. 

We  have,  however,  a  direct  adjudication  upon  the  kindred 
question,  whether  an  uneducated  Deaf  Mute  can  make  a  valid 
deed  or  conveyance  of  real  estate.  In  Brower  v.  Fisher,  (4  John- 
son's New  York  Chancery  Reports,  441,)  a  deed  was  declared 
valid  that  had  been  made  by  an  uneducated  Deaf  Mute;  it  being 
shown  on  enquiry,  by  a  commission  of  lunacy,  that  the  grantor, 
though  born  deaf  and  dumb,  "  had  sufficient  intelligence  for  the 
management  of  himself  and  property,  and  was  capable  of  com- 
municating, by  signs  and  motions,  with  persons  with  whom  he 
was  intimate,  so  as  to  be  well  understood  and  of  understanding 
them;  that  the  jurors  were  of  opinion  that  the  defendant  was 
not  a  lunatic,  unless  the  fact  of  his  having  been  born  deaf  and 
dumb,  in  judgment  of  law  made  him  a  lunatic."  The  Deaf 
Mute  had  sold  his  interest  in  his  father's  estate  to  the  plaintiff 
for  $375,  which  was  proved  to  be  a  fair  compensation  under  the 
circumstances,  being  assisted  in  making  the  sale  by  his  mother 
and  an  intimate  friend;  and  subsequently  bringing  suit  on  the 
bond  then  given,  the  purchaser  was  advised  that  the  deed  from 
a  Deaf  Mute  was  not  valid,  and  appealed  to  the  Court  of  Chan- 
cery for  his  own  protection.  Chancellor  Kent  decided  that  the 
deed  was  valid  under  the  circumstances;  yet  that  "the  bill  does 
not  appear  to  have  been  filed  vexatiously,  but  rather  to  obtain, 
for  greater  caution,  the  opinion  of  the  court  on  a  point  which 
had  been  left  quite  doubtful  in  many  of  the  books,  and  which 
had  never  received  any  discussion  here."  The  Chancellor  ob- 
serves :  "  Upon  the  finding  of  the  jury  under  the  commission,  in 
nature  of  a  writ  de  hinatico  inquirendo,  I  refused  to  appoint  a 
committee,  and  adjudged  that  the  defendant  was  not  to  be 


*  2  Blackstone's  Commentaries,  497. 


deemed  an  idiot  from  the  mere  circumstance  of  being  born  deaf 
and  dumb.  This  is  a  clear,  settled  rule,  and  numerous  instances 
have  occurred  in  which  such  afflicted  persons  have  demonstrable 
shown  that  they  were  intelligent,  and  capable  of  intellectual  and 
moral  cultivation."  This  is  quite  a  safe  assertion,  even  in  this 
country,  in  1820,  the  date  of  this  case.  After  citing  conflicting 
cases  and  authorities,  for  which  we  refer  our  readers  to  the 
volume  of  reports,  the  learned  and  able  Chancellor  goes  on  to  say  : 
"Perhaps,  after  all,  the  presumption  in  the  first  instance  is,  that 
every  such  person  is  incompetent.  It  is  a  reasonable  presump- 
tion, in  order  to  ensure  protection  and  prevent  fraud,  and  is 
founded  on  the  notorious  fact,  that  the  want  of  hearing  and  speech 
exceedingly  cramps  the  powers  and  limits  the  range  of  the  mind. 
The  failure  of  the  organs  necessary  for  general  intercourse  and 
communion  with  mankind,  oppresses  the  understanding :  affigat 
Jiumo  divines  particulam  auree.  A  special  examination,  to  repel 
the  inference  of  mental  imbecility,  seems  always  to'  have  been 
required,  and  this  presumption  was  all  that  was  intended  by  the 
civil  law,  according  to  the  construction  of  the  ecclesiastical 
courts ;  for  a  person  born  deaf  and  dumb  was  allowed  to  make 
a  will,  if  it  appeared,  upon  sufficient  proof,  that  he  had  the  re- 
quisite understanding  and  desire.  I  am  satisfied  that  the  plain- 
tiff is  justly  to  be  exempted  from  the  charge  of  a  groundless  and 
vexatious  inquiry,  and  the  course  is  not  to  punish  the  prosecutor 
of  a  charge  of  lunacy  with  costs,  if  the  prosecution  has  been 
conducted  in  good  faith,  and  upon  probable  grounds.  I  shall, 
therefore,  dismiss  the  bill  without  costs." 

The  effect  of  this  decision  seems  to  be,  that  a  Deaf  Mute  from 
birth  is,  in  all  cases,  to  be  presumed  incompetent  to  make  a  will 
or  a  contract,  till  his  competency  is  proved ;  and  that  if  he  sells 
property,  and  the  buyer  afterwards  choses  to  question  his  com- 
petency, he  must  defend  himself  at  his  own  costs.  We  submit 
that  it  would  be  more  in  accordance  with  reason  and  justice  to 
presume  his  competency,  as  in  the  case  of  men  who  hear  and 
speak,  Avhen  he  has  among  his  neighbors  a  reputation  for  intelli- 
gence, and  ability  to  manage  his  own  affairs,  and  more  espe- 
cially, when  he  has  been  taught  to  read  and  write.  It  is  to  be 
presumed  that  no  man  would  make  a  contract  with  him,  unless 
he  had  such  a  reputation  for  intelligence  and  competency ;  and 
if  the  purchaser  of  property  from  a  Deaf  Mute  neglected  to 
3 


34 

ascertain  this  point  beforehand,  we,  with  all  due  respect  to  the 
high  authority  we  have  cited,  respectfully  submit  that  the  ladies 
is  his  own,  and  that  he  ought  to  bear  the  costs  of  an  inquiry 
which  he  ought  to  have  previously  made  himself.  It  is  observa- 
ble that  Chancellor  Kent,  in  the  opinion  before  us,  makes  no 
distinction  between  Deaf  Mutes  who  have  and  those  who  have 
not  been  educated.  Probably,  at  that  early  day,  he  was  hardly 
aware  of  the  nature  of  this  distinction.  Indeed,  it  is  a  fact,  that 
there  are  some  uneducated  Deaf  Mutes  more  intelligent  in  mat- 
ters concerning  their  own  affairs,  than  are  some  of  those  who 
have  spent  years  in  an  Institution ;  for  all  the  care  of  the 
teacher  cannot  remedy  the  original  want  of  capacity.  Such 
cases  are  however  rare.  The  fact  of  having  been  educated  is 
one  strong  presumption  of  capacity  of  a  Deaf  Mute  to  manage 
his  own  affairs  ;  and  if  not  educated,  still  his  reputation  for  in- 
telligence among  his  neighbors  ought,  as  we  have  already  ob- 
served, to  be  presumptive  proof  as  to  his  capacity  or  incapacity. 

The  capacity  of  making  a  contract  involves  the  capacity  of 
making  a  will ;  as  we  see,  in  the  citation  just  given  from  Chan- 
cellor Kent,  he  refers  to  the  testamentary  capacity  conceded  to 
Deaf  Mutes  by  "the  ecclesiastical  courts,"  where  they  were 
proved  to  have  "the  requisite  understanding  and  desire,"  in 
illustration  of  the  capacity  of  a  Deaf  Mute  to  execute  a  valid 
deed.  From  this  decision,  therefore,  and  from  the  opinion  ex- 
pressed by  Surrogate  Bradford,  before  referred  to,  we  are  war- 
ranted in  declaring  the  law  to  be,  that  an  intelligent  Deaf  Mute, 
even  if  unable  to  write,  and  only  able  to  make  his  wishes  known 
by  signs,  can  make  a  valid  will,  or  valid  deed,  or  bind  himself  to 
any  other  obligation  or  contract.  And  we  have  high  legal 
authority  for  adding,  that  whatever  may  be  the  degree  of  his 
intelligence,  he  is  bound  for,  and  an  action  can  be  maintained 
against  him  for  necessaries  suitable  to  his  condition,  unless  it 
appear  that  the  person  who  supplied  them  knew  of  his  want  of 
ordinary  intelligence,  and  imposed  upon  him.  (Baxter  v.  Earl 
of  Portsmouth,  7  D.  &  D.  Ky.  614;  5  Barn.  &  Cres.  170;  2  Car. 
Pay.  178.) 

In  the  same  volume  (4th)  of  Johnson's  Chancery  Reports, 
(p.  168,)  we  find  a  case  in  which  a  woman  "  unmarried,  of  the 
age  of  sixty  years,  deaf  and  dumb  from  infancy,  and  of  such 
imbecility  of  mind  as  to  be  incapable  of  defending  the  suit"  in 


35 

which  she  was  legally  a  party  with  her  brother  and  others,  was 
admitted  to  appear  and  defend  by  guardian.  No  special  inquiry 
was  here  made ;  the  facts  on  which  the  application  for  the  ap- 
pointment of  a  guardian  were  founded  being  merely  verified  by 
affidavit.  Here,  it  will  be  seen  the  appointment  of  a  guardian 
was  grounded  on  "  imbecility  of  mind,"  and  not  merely  on  the 
defendant's  being  deaf  and  dumb.  She  was  doubtless  unedu- 
cated ;  for,  at  that  date,  (1819,)  there  were  no  Deaf  Mutes  in 
the  State  of  New  York,  sixty  years  of  age,  who  had  had  the 
opportunity  of  receiving  an  education.  Had  she  been  educated, 
however,  there  can  be  no  question  that  extreme  "  imbecility  of 
mind,"  though  it  would  be  less  likely  to  supervene,  would,  if  pre- 
sent, be  a  cause  for  appointing  a  guardian.*  We  find  a  French 
case  in  point,  recorded  by  Piroux,  who  informs  us  that  he  was 
called  in,  as  an  expert,  to  give  advice  on  the  question,  whether 
Frances  Boury,  one  of  his  former  pupils,  (at  Nancy,  in  Eastern 
France,)  was  in  a  condition  to  manage  her  own  estate,  or  whether 
it  would  be  for  her  benefit  to  name  for  her  a  conseil  judieiare, 
(a  sort  of  half-guardian.)  "  Knowing  (he  says)  that  this  young 
woman  has  no  longer  father  or  mother ;  that  she  is  obliged  to 
live  with  illiterate  persons,  among  whom  her  instruction  cannot 
be  continued,  and,  finally,  that  a  sickness  of  nearly  a  year,  which 
she  had  when  in  our  establishment,  has  hindered  her  progress, 
we  considered  that  it  would  be  useful  for  her  to  name  for  her  a 
conseil  judiciare,  and  the  tribunal  has,  by  a  judgment,  confirmed 
our  opinion/' f 


*  Since  writing  this  paper,  we  have  examined  the  laws  of  Georgia,  in  which 
it  is  enacted,  that  "  Deaf  and  Dumb  persons  shaJl  be  so  far  considered  idiots  in 
law  as  to  autiiorize  the  inferior  court  to  appoint  guardians,"  etc. :  provided,  it 
shall  be  made  satisfactorily  to  appear  to  said  court  that  such  Deaf  and  Dumb 
person  or  persons  are  incapable  of  managing  his  or  her  estate,  or  him  or  her  or 
themselves.''  This  is  the  only  American  legislative  provision  on  this  point  that  has 
come  to  our  notice.  Possibly  similar  provisions  may  exist  in  the  laws  of  other 
States;  but  we  believe  not  in  those  of  the  North-Eastern  or  Middle  States.  By 
the  principles  and  practice  of  the  common  law,  courts  might,  without  special 
enactment,  appoint  guardians  for  any  person  satisfactorily  shown  to  be  incapable 
of  managing  his  estate,  whether  deaf  and  dumb  or  not.  (See  2  Johnson's  New 
York  Chancery  Reports,  235.)  It  seems  then  the  indignation  expressed  by  a 
Georgia  Deaf  Mute  at  the  law  just  cited  (Am.  Annals,  viii,  124,)  was  rather 
unnecessary. 

f  L'Ami  des  Sourds-Muets,  tome  v,  p.  9:  We  suppose  that  a  conseil  judiciare 
differs  from  a  curateur  cr  guardian,  in  that  the  latter  acts  according  to  his  own 


36 

Another  case  is  recorded,  in  which  "  three  Deaf-Mute  bro- 
thers of  Normandy,  who  could  count  money,  play  cards,  &c., 
•were  interdicted  (that  is,  declared  incapable  of  contracting,  etc.) 
by  the  Civil  Tribunal  of  Loziere.  One  of  them,  endowed  with 
a  rare  intelligence,  finding  the  decision  of  the  Tribunal  an  obsta- 
cle to  his  marriage,  appealed  to  the  Cour  Royale  of  Rouen. 
This  court  was  of  opinion  that  the  provisions  of  the  law  relative 
to  interdiction  should  be  restricted  to  the  three  cases  of  imbe- 
cility, dementia,  and  insanity  provided  for  in  the  Code  ;  and  that 
this  Deaf  Mute  not  being  in  either  of  these  three  cases,  could 
not,  on  account  of  his  infirmity  alone,  be  subjected  to  a  measure 
so  rigorous  as  the  interdiction."*  From  these  cases  we  learn, 
that  though  through  the  influence  of  the  Roman  and  other  an- 
cient codes,  there  is  a  tendency  among  lawyers  and  judges  to 
question  the  capacity  of  Deaf  Mutes  to  manage  their  own  affairs, 
merely  on  account  of  their  infirmity,  yet  the  better  opinion, 
both  under  the  French  laws  and  our  own  is,  that  they  are  to  be 
treated  according  to  the  actual  intelligence  they  evince. 

Passing  on  to  another  branch  of  our  subject,  we  will  consider 
the  capacity  of  a  Deaf  Mute  to  contract  marriage.  By  the 
common  law,  which  in  this  respect  differed  from  the  civil  (Ro- 
man) law,  the  marriage  of  an  idiot  was  valid.  It  seems  strangely 
inconsistent,  that  the  same  law  which  declares  this  class  of  per- 
sons incapable  of  giving  their  consent  to  anything,  still  recog- 
nized their  right  to  enter  into  the  contract  of  matrimony.  Yet 
the  point,  their  ability  and  the  validity  of  such  a  marriage,  ap- 
pear to  have  been  expressly  adjudged.  (3  Coke  Lit.  80  a,  note 
47.)  "If  he  is  able  to  beget  either  son  or  daughter,"  says  one 
of  the  early  writers  on  the  common  law,  "  he  is  no  fool  natural." 
(Green,  Saver  de  default.}  But  in  the  last  century,  this  long- 
received  doctrine  of  the  common  law  was  called  in  question  ;  and 
after  much  examination  and  full  deliberation  on  the  part  of  the 
courts,  it  was  held  that  this,  the  most  important  contract  of  life, 


judgment,  independently  of  the  wishes  of  his  ward,  while  the  former  only  gives 
validity  to  the  nets  of  his  ward  by  his  advice  and  consent.  Would  not  it  be 
useful  to  have  similar  pi-ovisions  in  our  laws?  There  are  many  cases  in  which 
persons  cannot  be  trusted  with  the  independent  control  of  their  property,  and 
yet  ought  not  to  be  wholly  deprived  of  the  power  of  managing  it. 

|  Piroux'  Journal,  L'arai  des  Sourds-Muets,  tome  v,  p.  52. 


37 

the  very  essence  of  which  is  consent,  could  not  be  entered  into 
by  one  destitute  of  reason.  (1  Hogg.  Cons.  R.  417 ;  2  Phill. 
19,  70.) 

Of  the  capacity  of  a  person  born  deaf  and  dumb,  if  compos 
mentis,  to  contract  matrimony,  there  never  appears  to  have  been 
any  doubt  under  the  common  law,  and  the  validity  of  such  a 
marriage  contracted  by  signs,  was  recognized  towards  the  close 
of  the  17th  century.  Swinburne,  an  old  writer  on  the  law  of 
marriage,  whose  work  on  Spousals  was  published  in  1686,  after 
declaring  that  some  held  that  words  were  necessary,  as  touching 
the  church,  and  some  that  they  were  not,  says :  "  Their  consent 
alone  is  sufficient  for  matrimony  of  whose  conjunction  there  is 
any  ado ;  and  it  followeth  that  he  or  she  which  cannot  speak 
may  contract  matrimony.  The  reason  there  yielded  is  this : 
Quod  verbis  non  potest,  signis  valeat  declarare :  that  which  can- 
not be  expressed  by  words  may  be  declared  by  signs  ;  seeing 
their  sole  consent  is  sufficient,  and  seeing  that  they  which  be 
dumb  and  cannot  speak,  may  lawfully  contract  matrimony  by 
signs,  which  marriage  is  lawful,  and  availeth  not  only  before 
God,  but  before  the  church ;  it  followeth  that  words  are  not  so 
precisely  necessary,  as  without  the  which  matrimony  cannot  be 
contracted ;  and  this  conclusion  is  cpmmonly  received  of  all  or 
the  most  later  writers :  "  and  he  refers  to  a  large  list  of  various 
authors  and  writers.  (Sivinburne  on  Spousals,  204,  c.  xv.) 

The  rule  of  the  civil  law,  by  which  Deaf  Mutes  were  consid- 
ered incapable  of  contracting  matrimony,  appears  to  have  been 
relaxed  by  the  authority  of  the  church ;  for  we  find  in  the 
twelfth  century,  a  decretal  of  Pope  Innocent  III,  authorizing 
such  marriages.  Whether  this  was  confined  merely  to  the  Papal 
States,  or  was  designed  as  a  fixed  regulation  of  the  ecclesiastical 
or  canon  law,  we  are  unable  to  state.  It  seems,  however,  not 
to  have  been  followed  or  acted  on  in  countries  where  the  canon 
law  prevailed ;  for  in  France  the  validity  of  such  marriages 
was  not  recognized  until  within  a  comparatively  recent  period. 
According  to  Professor  Vaisse,  they  were  recognized  for  the 
first  time  by  a  decree  of  the  Parliament  of  Paris,  of  the  16th  of 
January,  1658.  We  have  already  stated  the  fact,  that  the  au- 
thors of  the  civil  code,  (the  famous  Code  Napoleon,)  rejected  the 
project  of  a  law  on  this  point,  leaving  it  to  the  tribunals  to 
judge  according  to  the  circumstances  of  each  case.  In  France, 


38 

where  the  Deaf  Mute  can  read  and  write,  there  is,  of  course,  no 
difficulty.  Where  he  is  illiterate,  different  views  have  been  taken 
by  the  magistrates  before  whom  Deaf  Mutes  have  presented 
themselves,  attended  by  their  most  intimate  friends  as  interpret- 
ers, in  order  to  have  the  civil  part  of  the  contract  of  marriage 
legally  performed.  (In  France,  the  reader  should  bear  in  mind, 
the  law  requires  a  civil  contract  of  marriage  to  be  entered  into 
before  the  maire  of  the  commune ;  and  takes  no  notice  of  the 
religious  ceremony,  for  which  the  parties  usually  proceed  from 
the  office  of  the  maire  (mayor)  to  the  church.)  Some  amusing 
cases  are  recorded  in  Piroux'  Journal.  In  August,  1842,  the 
maire  of  Gensac,  a  little  village  of  Guyenne,  was  summoned  be- 
fore the  civil  tribunal  of  Castel-Sarrasin,  at  the  instance  of  Mar- 
guerite L.,  an  uneducated  Deaf  Mute,  whose  marriage  he  had 
refused  to  celebrate.  "  Marguerite  was  a  young  woman  of 
twenty-five,  robust,  healthy,  affectionate,  capable  of  managing 
household  affairs,  intelligent  enough  to  wind  up  the  house  clock, 
and  set  it  to  the  right  hour,  and,  for  a  peasant,  rich.  A  young 
man  of  the  same  village  sought  her  in  marriage.  The  girl  con- 
sented, so  her  parents  attest,  as  well  as  the  play  of  her  features, 
and  her  signs  as  expressive  as  tender.  But  M.  le  Maire,  cold 
interpreter  of  the  law,  who  acknowledged  in  the  young  woman 
the  most  praiseworthy  qualities,  avowing  that  she  kept  her  cows 
with  care,  that  she  is  a  good  housewife,  that  she  fulfills  admirably 
the  duties  of  a  daughter,  but  who  did  not  find  in  her  the  intelli- 
gence of  the  chapter  VI  of  the  Civil  Code,  title  of  Marriage, 
on  the  duties  of  husbands  and  wives — refused  to  see  a  consent  to 
marriage  in  those  signs  which  the  amorous  Thyrsis  found  so 
expressive. 

Appearing  before  the  tribunal,  the  President  sent  out  her 
friends,  and  attempted  to  interrogate  her,  with  a  loud  voice,  him- 
self— of  course  without  any  result.  The  best  educated  Deaf 
Mute,  unless  he  had  acquired  a  rare  faculty  of  reading  on  the 
lips,  had  been  equally  unable  to  understand  the  President's  ques- 
tions. This  proceeding  gives  no  very  favorable  idea  of  the 
sagacity  of  the  judge,  or  of  his  appreciation  of  the  peculiar  cir- 
cumstances of  a  Deaf  Mute.  Her  mother  being  then  called  in, 
the  President  desired  her  to  ask  her  daughter  whom  she  wished 
to  marry,  and  to  tell  her  to  seek  him  in  the  hall.  After  some 
pantomime  between  the  mother  and  daughter,  the  latter  hastily 


39 

passed  among  the  assembled  crowd,  found  her  lover,  and  led  him 
forward  by  the  hand,  amidst  the  encouraging  smiles  of  the  spec- 
tators. Her  advocate  maintained  that  she  had  sufficiently  mani- 
fested her  wish  to  marry  the  Sieur  B. ;  but  the  procureur  de  rci 
replied : 

"  The  question  has  been  put  wrong ;  we  have  not  to  inquire 
whether  the  young  woman  L.  attends  to  her  household  aifairs, 
whether  she  cooks  well  or  ill — these  facts  are  not  contested ;  but 
whether  she  comprehends  the  burdens  and  duties  (charges  et  de- 
voirs) of  marriage ;  we  have  to  inquire  whether  she  is  capable  of 
giving  an  intelligent  consent.  We  think  not.  It  is  not  enough. 
in  order  to  prove  that  she  comprehends  the  importance  of  this 
solemn  act,  that  she  should  push  from  her  the  huissier*,  or  that 
she  should  lead  forward  her  pretendant,  (suitor.)  Whatever  her 
advocate  may  have  maintained,  marriage  does  not  consist  in  the 
mere  bringing  together  of  the  sexes :  marriage  is  rather  a  moral 
and  civil  bond  which  forms  families ;  families  are  the  nursery  of 
the  State.  Among  us  one  does  not  make  a  gipsy  marriage — a 
marriage  by  breaking  the  pitcher. f  You  will,  therefore,  reject 
the  demand  of  the  Deaf  Mute,  and  condemn  her  to  pay  the 
costs."  (Piroux  Journal,  iv,  140.) 

The  distinguished  Deaf  Mute  Berthier,  commenting  in  the 
public  prints  on  this  specious  reasoning,  remarks :  "  These 
burdens  and  duties  of  marriage,  is  it  then  necessary  that  the 
Deaf  and  Dumb  should  know  them  more  thoroughly  than  other 
men  ?  Are  there,  for  their  peculiar  use,  definitions  more 
philosophical  and  metaphysical  ?  The  first  village  lout  who 
presents  himself  is  allowed  to  marry,  provided  he  says  yes, 
and  a  doctor's  diploma  is  almost  necessary  to  the  Deaf  Mute 
who  would  marry." 

The  court,  not  being  satisfied  with  the  proofs  offered  of  the 
intelligence  of  Marguerite  L.,  named  as  interpreter,  a  curate, 
who  demanded  three  months  to  enable  him  to  communicate 
with  the  Deaf  Mute.  Whether,  after  this  delay,  the  marriage 
was  finally  ordered,  is  not  on  record.  We  cannot  but  agree 


*  The  huissier  of  the  court  had  been  proposed  to  her  (in  pantomime)  as  her 
future  husband. 

|  A  ceremony  of  marriage  observed  by  the  French  gipsies. 


40 

with  Berthier  that  the  suit  of  Marguerite  was  subjected  to 
delay,  and  perhaps  to  final  refusal,  rather  on  the  ignorance 
of  the  court  than  of  the  Deaf-Mute  suitor.  It  had  been  far 
more  rational  to  have  sent  for  some  person  already  habituated 
to  converse  with  the  Deaf  and  Dumb ;  as  was  done  in  the 
next  case  we  cite. 

This  case  occurred  in  Provence,  a  few  months  later.  The 
Maire  of  Rousillon  scrupled  to  perform  the  ceremony  of  .mar- 
riage for  a  Deaf-Mute  bride,  an  intelligent  dress-maker,  but 
who  could  only  express  herself  by  signs.  The  case  was  carried 
to  the  civil  tribunal  of  Apt,  when  (in  December,  1842,)  after 
argument  on  both  sides,  and  an  examination  of  the  would-be 
bride  in  open  court,  by  sworn  interpreters,  who  were  themselves 
well  educated  Deaf  Mutes,  "  after  a  session  that  lasted  two 
hours,  the  tribunal  declared  Victoire  Mathiew  competent  to 
give  an  intelligent  consent  to  be  married  ;  found  no  hindrance 
to  this  marriage ;  and  ordered  that  the  two  interpreters  who 
had  already  served  the  court,  should  assist  the  mayor  at 
the  celebration ;  that  their  interrogation  should  be  reduced 
to  the  proces  verbal  by  the  mayor,  and  annexed  to  the  aete* 
of  marriage,  which  should  be  signed  by  the  same  interpreters. "f 
This  decision,  in  connection  with  that  already  given  in  the  case 
of  Clergue,  seems  definitely  to  establish  the  doctrine  that, 
in  France,  an  illiterate  Deaf  Mute,  if  of  sufficient  intelligence, 
and  able  to  clearly  manifest  his  wishes  by  signs,  is  capable 
of  entering  into  the  contract  of  marriage,  or  any  other  civil 
contract. 

In  some  other  European  countries,  greater  difficulties  are 
opposed  to  the  marriages  of  even  educated  Deaf  Mutes.  In 
Prussia,  it  is  said,  two  Deaf  Mutes  are  not  permitted  to  marry, 
lest  they  should  have  Deaf  Mute  children, — a  chance  which 
experience  in  our  own  country  has  shown  to  be  too  small  to 
be  a  valid  pretext  for  forbidding  a  union,  that  in  other  respects 
promises  to  promote  the  happiness  of  the  parties. 

In  Switzerland,  at  least  in  Berne,  the  largest  of  the  Swiss 
Cantons,  Deaf  Mutes,  even  if  well  educated,  cannot  marry 
without  having  first  obtained  the  consent  of  the  courts  of  law. 

*  Eqiuvalent,  or  nearly  so,  to  what  we  call  a  certificate  of  marriage, 
f  Piroux'  Journal,  v.  20. 


41 

The  following  case,  which  we  find  in  Pircux'  Journal,  the 
American  reader  can  also  consult  in  the  chapter  on  the  Deaf 
and  Dumb  in  Beck's  Medical  Jurisprudence. 

Anna  Luthi  was  one  of  the  most  intelligent  and  best  educated 
pupils  of  the  Deaf  and  Dumb  Institution  of  Berne.  Her 
father  was  dead,  and  her  mother  re-married.  She  was  a  very 
pretty  young  woman  of  twenty-five,  and  possessed  a  fortune 
of  thirty  thousand  francs.  Her  hand  was  demanded  in  marriage 
by  one  M.  Brossard,  who  had  been  deaf  from  the  age  of  four- 
teen, a  skillful  lithographer,  employed  several  years  in  the 
Institution  where  Mademoiselle  Luthi  was  educated, — a  man 
of  thirty-two  years,  possessing  an  excellent  character,  and 
already  having  laid  up  some  money. 

Some  of  the  relatives  of  the  demoiselle  Luthi,  and  especially 
the  authorities  of  her  commune,  jealous,  it  was  said,  of  a 
stranger  to  the  Canton  becoming  proprietor  of  the  fortune 
which  they  would  rather  have  fall  to  one  of  their  own  young 
men, — opposed  this  marriage ;  raising  the  pretexts  that  Bros- 
sard had  abused  his  situation  as  her  teacher  to  make  her  sign 
a  promise  of  marriage ;  that  he  sought  only  her  fortune,  and 
that  it  was  to  be  feared  that  the  children  of  such  a  union 
would  inherit  the  misfortune  of  their  parents.  This  last  alle- 
gation was  countenanced  by  the  local  medical  men,  and  the 
judges  refused  consent  to  the  marriage.  The  lovers  appealed 
to  the  Supreme  Tribunal  of  Berne ;  and  certificates  from  the 
first  professors  of  medicine  of  that  city  were  procured  in  oppo- 
sition to  the  opinion  of  the  local  physicians,  as  to  the  danger 
of  the  children  inheriting  the  deafness  of  the  parents ;  letters 
were  produced  from  the  young  woman  to  Brossard,  sufficiently 
evincing  both  her  intelligence  and  her  affection ;  and  the 
tribunal  unanimously  decided  that :  "  In  the  circumstances 
of  the  case,  a  refusal  of  consent  would  be  equivalent  to  a  gene- 
ral and  absolute  prohibition  of  the  marriage  of  Deaf  Mutes, 
which,  however,  is  not  in  the  law  ;  farther,  that  the  very  con- 
ditions in  which  the  parties  found  themselves  were  a  sort 
of  guaranty  that  the  demoiselle  Luthi  would  find  in  him, 
more  than  in  any  other  man,  one  capable  of  alleviating  her  situa- 
tion, and  that  their  pecuniary  resources  gave  them  the  means 
to  procure  all  necessary  aid  in  taking  care  of  their  children." 


42     / 

The   decision    of  the   inferior   court  was  accordingly  reversed, 
and  the  marriage  permitted. 

In  this  country,  where  there  is  no  law  against  the  marriage 
of  Deaf  Mutes,  the  scruples  of  one  magistrate  or  minister  need 
not  hinder  a  ceremony,  if  the  parties  can  find  another,  more 
reasonable  or  more  intelligent.  Neither  are  they  restricted, 
as  in  some  European  countries,  to  have  the  ceremony  performed 
in  their  own  commune  or  district.  A  marriage  for  which  the 
parties  have  crossed  a  State  line,  or  any  other  line,  if  celebrated 
in  accordance  with  the  local  law,  is  as  valid  as  if  they  had 
been  married  at  home.  They  have  thus  a  wide  field  in  which 
to  find  officers  qualified  and  Avilling  to  perform  the  ceremony. 

The  cases  raised  before  the  French  and  Swiss  courts  can 
hardly  be  considered  legal  questions  with  us.  They  are  rather 
cases  of  conscience,  and  of  common  prudence,  to  be  considered 
by  the  friends  of  a  Deaf  Mute,  if  they  have  any  influence 
in  aiding  to,  or  dissuading  from  a  marriage.  In  this  country, 
where  education  has  been  placed,  by  the  benevolence  and  jus- 
tice of  our  legislatures,  within  the  reach  of  almost  every  Deaf 
Mute  of  fair  capacity ;  we  should  hardly  object  to  a  rule  that 
uneducated  Deaf  Mutes  ought  not  to  marry ;  for  we  trust  there 
will  in  time  to  come  be  very  few  Deaf  Mutes  in  our  country 
of  such  capacity  and  energy  that  they  ought  to  be  encouraged 
to  marry  at  all, — left  without  education.  Yet  we  have  known 
several  uneducated  Mutes  who  have  fulfilled,  as  well  as  ignorant 
speaking  persons  generally  do,  the  duties  of  husbands  or  wives 
and  parents.* 

Several  hundred  marriages  have  been  contracted  by  graduates 
of  the  American  Schools  for  the  Deaf  and  Dumb  within  the 
last  thirty  years.  In  the  majority  of  these  cases,  both  the 
parties  were  Deaf  Mutes.  Though  able  to  read  and  write,  they 
always  prefer  to  have  the  ceremony  performed  in  their  own 
language  of  gestures,  whenever  a  clergyman  can  be  found  Avho 


*  Chancellor  Kent  observes,  (4  Johnson  Ch.  Rep.  345,)  "It  is  too  plain  a 
proposition  to  be  questioned,  that  idiots  and  lunatics  are  incapable  of  entering 
into  the  matrimonial  contract;"  but  he  also  decided,  as  we  have  already  noted, 
that  even  an  illiterate  man  "was  not  to  be  deemed  an  idiot  from  the  mere 
circumstance  of  being  born  deaf  and  dumb." 


43 

understands  it,  or  a  good  interpreter  can  be  obtained.  The 
superior  impressiveness  and  solemnity  of  a  ceremony  so  per- 
formed, to  one  performed  in  writing,  is  a  sufficient  reason  for 
this  preference.  In  cases  of  which  \ve  recollect  some  in  which 
one  or  both  of  the  parties  were  uneducated  Mutes,  the  necessary 
questions  and  answers  were  of  course  either  made  by  signs,  or 
translated  in  that  language  by  somo  person  accustomed  to  com- 
municate with  the  Deaf  Mute.  It  ought  to  be  more  generally 
known  than  it  is,  that  the  intelligence  of  a  Deaf  Mute  does  not 
depend  wholly,  or  perhaps  even  chiefly,  on  his  skill  in  written 
language ;  that,  on  the  contrary,  it  depends  very  much  on  the 
copiousness  and  precision  of  his  colloquial  dialect  of  signs,  and 
on  the  extent  to  which  he  can  converse  by  that  means  with  those 
around  him.  A  Deaf  Mute  possessed  of  such  a  dialect  may  be 
very  intelligent  though  almost  or  quite  illiterate.  Hence  it  is 
that  even  a  short  residence  at  one  of  our  institutions  is  so  bene- 
ficial, even  where  only  a  very  imperfect  knowledge  of  written 
language  was  acquired ;  partly  by  the  acquisition  of  an  improved 
dialect  of  signs,  which  in  an  institution  is  very  rapidly  made, 
while  the  study  of  written  language  is  slow,  and  partly  from  the 
amount  of  general  information  acquired  by  free  conversation 
with  the  more  advanced  pupils.  A  Deaf  Mute  of  naturally 
quick  perceptions  will  acquire  by  mere  observation,  tolerably 
correct  ideas  of  the  nature  and  responsibilities  of  the  marriage 
relation,  even  if  wholly  illiterate.  And  a  Deaf  Mute,  who  from 
interruptions  to  his  term  of  instruction,  has  but  a  very  scanty 
knowledge  of  written  language,  may  be,  and  often  is  as  capable 
of  understanding  and  fulfilling  these  responsibilities  and  duties 
as  those  who  hear  and  speak. 

We  pass  on  to  another  of  the  questions  before  us,  "  The 
proper  mode  in  which  a  person  profoundly  deaf,  and  having 
little  or  no  skill  in  the  language  of  signs,  or  having  no  inter- 
preter who  understands  signs,  but  understanding  writing  per- 
fectly, should  take  a  judicial  oath,  or  assume  any  legal  obliga- 
tion ?" 

In  the  case  of  a  Deaf  Mute  who  cannot  read  and  write,  or 
but  imperfectly,  the  rule  of  the  law,  as  we  shall  hereafter  show, 
is  to  employ  a  sworn  interpreter  familiar  with  his  modes  cf  com- 
munication. In  the  case  of  one  who  understands  writing  per- 
fectly, it  will  appear  by  an  English  case  we  shall  hereafter  cite. 


44 

the  proper  mode  is  to  write  to  him  what  you  would  speak  to  one 
who  can  hear ;  and  let  him  write  what  the  latter  would  speak. 
In  the  practical  application  of  this  rule  there  may  be  differences 
of  opinion.  The  only  thing  essential  is  that  the  Deaf  person 
should  show  in  an  unequivocal  manner  that  he  understands  what 
is  written  to  him,  and  that  he  assents  to  it  where  his  assent  is 
required.  We  have  already  cited  an  opinion  of  the  learned 
Surrogate  of  New  York,  that  a  Deaf  Mute  could  go  through  the 
whole  ceremony  of  executing  a  will  "  by  means  of  a  conversation 
in  writing."  In  like  manner  an  oath  can  doubtless  be  adminis- 
tered in  writing;  but  whether  it  is  enough  to  write  it  before  the 
eyes  of  the  Deaf  Mute,  requiring  him  to  read  and  sign  it, 
(laying  his  hand  on  the  Bible  at  the  same  time,  or  performing 
such  other  ceremony  as  the  case  may  require,)  or  whether 
he  should  be  required  to  copy  it,  is,  in  the  absence  of  any  statu- 
tory provisions,  a  question  to  be  determined  by  the  tribunal 
before  which  the  Deaf  Mute  appears  as  a  witness. 

We  would,  however,  observe,  that  though  the  copying  of  the 
form  of  oath  secures  greater  attention  to  the  words  that  compose 
it,  it  is  not,  in  the  case  of  a  Deaf  Mute,  any  test  whatever  that 
he  understands  it,  any  more  than  a  foreigner's  repeating  after 
the  magistrate  a  form  of  words  in  English  would  be  a  test  that 
he  understood  it.  It  is  therefore,  in  every  such  case,  the  duty 
of  the  judge  to  satisfy  himself,  by  a  conversation  in  writing,  that 
the  Deaf  Mute  who  offers  to  take  an  oath  has  a  just  idea  of  the 
nature  of  the  ceremony,  and  is  aware  of  the  consequences  of 
perjury;  and  that  he  understands  the  purport  of  the  particular 
oath  placed  before  him.  Piroux  records  a  case  in  which  a  Deaf 
Mute  presented  himself  as  an  elector,  (voter.)  He  wrote  out 
very  readily  and  neatly,  the  prescribed  oath  of  an  elector;  but 
on  attempting  to  communicate  with  him  by  writing,  no  answers 
could  be  obtained  to  the  simplest  questions.  When  asked  for 
instance,  What  is  your  name?  he  merely  copied  the  words.  An 
educated  Mute,  called  in  as  interpreter,  could  not  even  communi- 
cate with  him  by  signs,  (perhaps  because  the  signs  he  used  were 
too  artificial.)  "In  these  circumstances  the  tribunal  (of  Nar- 
boune)  considered  that  the  Deaf  Mute  could  neither  read  nor 
write;  and  declared  him  incapable  of  fulfilling  the  functions  of 
a  communal  elector,  since  it  was  impossible  to  make  him  compre- 
hend what  an  elector  is  called  on  to  do,  nor  what  was  that  oath 


45 

of  which  he  copied  so  well  the  formula,  but  to  which  he  could 
attach  no  meaning.* 

Where  the  Deaf  Mute,  understanding  writing  either  imper- 
fectly or  not  at  all,  is  reduced  to  the  aid  of  an  interpreter  for 
taking  an  oath,  or  for  any  other  legal  proceeding,  a  teacher  of 
the  Deaf  and  Dumb  will  undoubtedly  be,  in  most  cases,  the 
most  proper  person,  as  being  accustomed  to  express  in  clear  and 
impressive  signs,  moral  and  religious  ideas,  f  The  intimate 
acquaintances  of  an  illiterate  Deaf  Mute,  however  readily  they 
may  converse  with  him  on  matters  of  every-day  life,  will,  in  most 
cases,  be  much  embarrassed  in  endeavoring  to  express,  in  panto- 
mime, such  ideas  as  pertain  to  the  taking  of  an  oath.  We  shall 
hereafter  cite  cases  in  point. 

When  Deaf  Mutes  appear  before  the  tribunals,  whether  as 
complainants,  accused,  or  witnesses,  much  embarrassment  often 
results  from  their  inability  to  comply  with  the  old  established 
forms,  adapted  for  those  who  hear  tmd  speak.  The  common  law, 
indeed,  permits  the  form  of  an  oath,  where  it  is  not  prescribed 
by  statute,  to  be  varied  so  as  to  adapt  it  to  the  religious  belief  of 
the  witness,  or  to  have  it  taken  in  that  form  which  he  deems 
most  binding;  and  of  course  in  the  mode  which  will  speak  the 
most  directly  and  powerfully  to  his  conscience.  With  this  prin- 
ciple in  view,  we  shall  have  no  difficulty  in  deciding  that  an  oath 
ought  to  be  administered  to  a  Deaf  Mute,  (we  do  not  mean  a 
semi-Mute,  or  one  who  understands  writing  better  than  signs) — 
to  a  Deaf  Mute  we  say,  by  means  of  an  interpretation  in  his 
own  language  of  gestures.  Papists  are  sworn  .on  the  crucifix, 
Mahometans  on  the  Koran,  Hindoos  on  the  waters  of  the 
Ganges,  &c.  The  same  principle  should  teach  us  that,  if  it  be 
deemed  essential  to  secure  a  religious  sanction,  or  the  dread  of 
punishment  beyond  human  power,  for  an  oath  taken  by  a  Deaf 
Mute,  it  will  suffice  if,  though  not  indoctrinated  in  the  mysteries 


*  L'Ami  des  Sourds-Muets,  ii,  76,  77. 

f  Though  the  advantage  of  having  an  interpreter,  one  skilled  in  the  system 
of  signs  used  in  an  institution,  is  of  course  greatest  where  the  Deaf  Mute  is 
already  acquainted  with  that  system  of  signs;  yet  the  power  which  the  teacher 
acquires  of  exhibiting  to  his  new  pupils  religious  and  moral  ideas  clearly  in 
pantomime,  enables  him  to  impart  such  ideas  to  an  uneducated  Mute  more 
readily  than  any  other  person  could. 


46 

of  the  Christian  religion,  he  still  believes,  as  most  Deaf  Mutes, 
even  if  uneducated,  do,  that  there  are  superior  beings  in  the  sky, 
by  "whom  wicked  men  are  punished.  But,  as  we  shall  hereafter 
explain,  the  laws  of  some  of  the  States  have  done  away  with  the 
religious  test  as  affecting  the  competency  of  the  witness ;  leaving 
it  as  one  of  the  grounds  on  which  the  jury  shall  judge  of  his 
credibility.  And  in  the  case  of  a  Deaf-Mute  prisoner,  brought 
before  the  tribunals  for  formal  trial — though  naturally  more 
weight  is  given  to  difficulties  of  form,  when  they  make  in  be- 
half of  the  prisoner,  especially  of  a  prisoner  whose  double  mis- 
fortune gives  him  such  claim  to  compassion — we  apprehend  such 
difficulties  can  be  got  over  by  the  simple  rule  of  regarding  it  as 
the  duty  of  the  court  or  of  the  prisoner's  counsel  to  do  in  his 
behalf,  whatever  he  wants  intelligence  to  do  for  himself.  The 
questions  that  are  on  such  occasions  sometimes  raised,  as  to  the 
degree  of  capacity  and  accountability  of  uneducated  Mutes,  are 
more  difficult  of  solution. 

The  Code  Napoleon  prescribes  the  forms  to  be  observed  in  the 
case  of  an  accused  person,  or  a  witness  who  is  a  Deaf  Mute. 
"  When  a  Deaf-Mute  accuse  does  not  know  how  to  write,  the 
president  shall  appoint  as  his  interpreter  the  person  who  is  most 
habituated  to  converse  with  him."  "  The  same  provision  is  made 
in  the  case  of  a  Deaf-Mute  witness.  "  In  case  the  Deaf  Mute 
knows  how  to  write,  the  greffier  (clerk)  shall  write  the  questions 
and  observations  made  to  him  ;  they  shall  be  put  before  the  ac- 
cused or  witness,  who  will  render  by  writing  their  answers  or 
declarations,  The  whole  shall  be  read  aloud  by  the  greffier." 
(Criminal  Code,  Art.  333.) 

We  doubt  whether  this  particularity  in  prescribing  forms  is 
judicious.  There  are  cases  in  which  some  persons  skilled  in  the 
idioms  and  mental  characteristics  of  the  Deaf  and  Dumb  as  a 
class  will  make  a  better  interpreter  than  the  person  most  accus- 
tomed to  converse  with  the  prisoner,  who,  moreover,  may  possibly 
be  deficient  in  honesty  or  intelligence,  or  both.  In  fact,  it  ap- 
pears that  the  French  tribunals  usually  call  upon  a  teacher  of 
the  Deaf  and  Dumb,  or  a  well  educated  Mute,  to  serve  as  inter- 
preter in  such  cases ;  probably  making  the  letter  of  the  code 
defer  to  its  spirit.  And  where  an  intelligent  and  reliable  inter- 
preter is  present,  and  the  Deaf  Mute,  as  most  Deaf  Mutes  do, 


47 

understands  signs  better  than  writing,  it  seems  to  us  preferable 
that,  even  \vhen  able  to  read  and  write  passably  well,  his  exami- 
nation should  be  conducted  by  signs.  Not  only  will  the  ques- 
tions put  to  him  be,  in  most  cases  more  fully  understood ;  but 
his  examination  will  more  nearly  approach,  in  solemnity  and  di- 
rectness of  appeal  to  his  conscience,  the  oral  examination  of  an 
ordinary  witness.  Often,  however,  a  reliable  interpreter  may  not 
be  procurable ;  in  some  cases,  even,  the  Deaf  witness  may  not 
understand  signs  as  well  as  writing ;  and  the  counsel  on  the  one 
side  or  the  other  may  wish  to  put  questions  of  their  own  wording : 
in  short,  we  give  the  preference  to  the  rules  of  our  common  law, 
under  which  the  courts,  on  good  advisement,  have  full  latitude  of 
decision  what  mode  of  examination  is  best  under  the  circum- 
stances of  the  case.  We  shall  hereafter  cite  decisions  in  point. 
(See  Snyder  v.  Nations,  5  Blackford's  Rep.  (Indiana)  295. 
Morrison  v.  Leonard,  3  Car.  &  Pay.  127.  St.  of  Conn.  v.  De 
Wolf,  8  Conn.  Rep.  93.) 

It  is  a  point  worthy  of  special  mention,  that  some  uneducated 
Deaf  Mutes  communicate  with  their  intimate  companions  by 
means  of  a  peculiar  dialect,  which  even  those  who  are  conver- 
sant with  the  Deaf  and  Dumb  would,  at  first,  not  under.-tand. 
In  a  case  which  occurred  in  the  interior  of  New  York,  an  action 
of  affiliation  was  brought  in  behalf  of  an  uneducated  Deaf  and 
Dumb  girl.  She  appeared  before  the  court  to  give  her  evidence, 
accompanied  by  her  sister  as  interpreter,  who  communicated  with 
her,  not  by  natural  signs,  or  motions  of  the  hands  and  fingers, 
but  by  motions  of  the  lips  which  to  the  bystanders  presented 
only  uncouth  and  unintelligible  mouthings  and  grimaces.  The 
opposing  counsel,  believing  that  this  was  all  a  deception,  wrote 
to  Dr.  Peet  of  the  New  York  Institution  for  the  Deaf  and  Dumb, 
for  his  opinion  in  the  case.  Dr.  Peet  called  up  two  of  his  pupils, 
a  brother  and  sister,  who  he  knew  were  accustomed  to  converse 
by  similar  means,  having  been  taught  to  understand  the  motions 
of  the  lips,  aided  by  grimaces  and  gestures,  by  their  father.  He 
found  them  able  to  converse  in  this  way  to  a  considerable  extent, 
and  answered  the  lawyer's  enquiry  accordingly.  It  is  a  fact 
that  when  hearing  has  been  lost  at  such  an  age  that  an  imper- 
fect power  of  speech  remains,  the  Deaf  person  makes  little  or  no 
use  of  those  gestures  on  which  Deaf  Mutes  from  birth  rely ;  but 


48 

communicates  "with  those  most  intimate  with  him  by  his  imperfect 
speech,  especially  if  he  cannot  read  and  write,  divining  their  re- 
plies by  the  motions  of  the  lips,  to  which  grimaces  and  some  simple 
gestures  will  often  be  added  for  greater  clearness  and  significance. 
And,  as  we  have  seen,  cases  sometimes  occur  in  which  the  use  of 
the  voice  may  be  lost  entirely,  only  the  motions  of  the  lips  and 
the  accompanying  grimaces  remaining.  A  Deaf  Mute  from 
birth,  or  early  infancy,  naturally  converses  by  means  of  gestures, 
unless  a  different  mode  of  communication  is  early  taught  him ;  a 
Deaf  person  who  learned  to  read  before  his  misfortune,  may  ac- 
quire a  decided  preference  for  writing,  or  the  manual  alphabet, 
as  a  means  of  communication:  but  a  child  who  becomes  deaf 
after  he  is  able  to  speak  pretty  fluently,  but  before  learning  to 
read,  is  naturally  led  to  efforts  to  divine  what  is  said  to  him  from 
the  motions  of  the  lips  and  changes  of  the  countenance,  the 
most  difficult  and  least  certain  mode  of  the  three — though  some 
Deaf  persons  of  quick  perceptions  have  acquired  surprising  rea- 
diness and  expertness  in  guessing  words  from  the  motions  of  the 
lips.  And  as  the  case  just  cited  shows,  Deaf  Mutes  from  birth 
sometimes  learn  to  converse  in  a  peculiar  dialect  of  labial  move- 
ments and  grimaces. 

[  Since  this  paper  was  written,  we  have  obtained  fuller  par- 
ticulars of  this  case ;  and,  as  it  seems  one  of  some  interest  and 
importance,  we  annex  the  correspondence  between  the  defend- 
ant's counsel  and  Dr.  Peet,  and  also  statements  made  by 
Hon.  Bishop  Perkins,  counsel  on  the  other  side,  and  Joseph 
Barnes,  Esq.,  one  of  the  judges  before  whom  the  case  was 
brought  on  appeal.  The  order  of  affiliation  was  made  by  two 
Justices  of  St.  Lawrence  county,  (town  of  Gouverneur,)  in  March, 
1850,  and  on  appeal  to  the  County  Sessions,  on  the  4th  and  5th 
of  April  following,  after  a  very  long  and  minute  investigation, 
which  seems  to  have  turned  wholly  on  the  ability  of  Mrs. 
Thayer,  the  sister  of  the  Deaf  Mute,  to  communicate  with 
her  by  motions  of  the  lips,  the  order  was  confirmed — showing 
that  men  who  seduce  Deaf  Mutes,  must  not  expect  to  escape 
the  consequences  by  the  inability  of  the  latter  to  testify  against 
them. 


49 


The  Defendant's  Counsel  to  Dr.  Peet. 

CANTON,  ST.  LAWRENCE  COUNTY, 
March  21,  1850. 

Dear  Sir, — I  was  called  a  few  days  ago  to  attend  in  my 
professional  capacity  an  examination  before  a  magistrate  in 
the  town  of  Gouverneur  in  this  county,  in  a  case  of  bastardy ; 
the  object  of  the  examination  being  to  determine  judicially  who 
was  the  father  of  a  child  likely  to  be  born  a  bastard  of  a  young 
woman  about  27  years  of  age,  then  pregnant,  and  who  has  been 
from  her  birth  deaf  and  dumb. 

The  young  woman,  above  described,  was  the  principal  witness 
of  course,  and  gave  evidence  through  another  person,  sworn 
to  interpret  truly  the  questions  of  the  court  to  her,  and  her 
answers  to  the  court. 

The  interpreter  employed  on  this  occasion  was  an  elder 
sister  of  the  Mute,  who  testified  that  the  Deaf  and  Dumb 
girl  had  resided  in  the  family  for  several  years,  and  professed 
to  be  able  to  communicate  freely  with  her  by  repeating  to  her 
the  questions  proposed,  calling  the  Mute's  attention  to  the 
movement  of  her  own  lips,  and  the  expression  of  her  counte- 
nance, in  the  act  of  speaking  or  whispering  to  the  Mute,  and 
by  the  movements  of  the  Mute's  lips,  and  certain  inarticulate 
sounds  uttered  by  the  Mute  in  reply,  the  interpreter  professed 
to  ask  and  to  receive  answers  from  the  Mute,  respecting  the 
subject  of  the  investigation.  For  instance — the  interpreter  is 
desired  to  ask  the  Mute,  "  When  and  where .  the  connection 
took  place,  from  which  she  became  pregnant?" 

The  interpreter  looks  attentively  in  the  Mute's  face,  and 
moves  her  lips,  as  if  repeating  those  words,  (but  uttering  no 
audible  sound,  nor  making  any  manual  signs.) 

The  Mute  then  moves  her  lips  (with  considerable  distortion 
of  countenance,)  and  the  interpreter  states,  "  she  says  it  was 
on  a  Sunday  afternoon  in  the  month  of  June.  I  was  with 
a  little  girl  picking  berries  by  the  road  side,  near  a  piece 
of  woods ;  the  defendant  came  there,  and  hired  the  little  girl 
to  go  further  away,  on  pretence  of  getting  some  berries,  and 
while  she  was  absent  had  the  connection  with  me,"  &c. 

The  girl  is  uneducated,  that  is  to  say,  she  has  been  at  no 
4 


50 

school  where  persons  of  that  description  are  taught,  nor  has 
she  been  taught  any  alphabet  of  signs,*  but  appears  to  be 
tolerably  intelligent  for  one  of  her  condition,  can  -write  her 
own  name,  and  can  select  and  arrange  in  their  proper  order 
printed  letters,  so  as  to  spell  correctly  her  own  name. 

Now,  sir,  it  seems  to  me  incredible  that  a  person  deaf  and 
dumb  from  birth,  and  consequently  [having]  no  conception 
of  articulate  sounds,  could  be  so  astonishingly  quick  and  acute, 
as  to  receive  and  impait  freely  ideas  in  the  manner  I  have 
attempted  to  describe. 

I  believed,  and  still  believe,  that  the  person  employed  in 
this  instance  to  interpret,  was  practicing  a  sheer  imposition. 
If  the  Dumb  can  thus  speak,  it  seems  to  me  little  short  of 
miraculous,  and  that  we  need  no  schools  specially  devoted 
to  their  instruction. 

May  I  be  permitted,  although  an  entire  stranger  and  claim- 
ing no  right  to  intrude  my  correspondence  upon  you,  to  ask 
you  in  your  professional  capacity,  as  a  person  having  great 
experience  of  this  unfortunate  class  of  persons,  whether  in 
your  opinion  it  is  possible  that  a  person  mute  and  deaf,  such 
as  I  have  described,  can  converse  and  be  conversed  with  in 
the  way  I  have  described? 

Did  you  ever,  in  your  intercourse  with  your  pupils  or  others 
of  that  class  of  persons,  discover  or  practice  such  a  medium 
of  communicating  ideas  ? 

I  hope,  sir,  that  the  interest  you  may  feel  in  the  subject 
of  my  inquiry,  or  mere  courtesy  to  a  stranger,  may  induce 
an  early  answer  to  this  hasty  inquiry,  and  that  you  will  pardon 
the  liberty  I  take  in  asking  this  favor.  Will  you  also  please 
enclose  this  letter  to  me  with  your  reply,  if  possible  -without 
delay. 

I  am,  sir,  very  respectfully  yours, 

THOMAS  V.  RUSSELL. 

To   the    Superintendent   of    the    New   York    Deaf   and   Dumb 
Asylum,  New  York. 

*  We  suppose  Mr.  Russell  means  a  Manual  alphabet. 


51 


Dr.  Peet's  Reply. 

Dear  Sir, — In  answer  to  the  inquiry  contained  in  your  letter 
of  the  21st  inst.,  as  to  the  possibility  of  holding  communication 
with  a  person  deaf  from  birth,  simply  by  the  motions  of  the  lips, 
as  if  speaking,  with  or  without  articulate  sounds,  I  reply,  that 
the  process  which  you  describe  as  having  been  pursued  in 
the  case  referred  to,  is  precisely  the  method  adopted  in  the 
German  schools,  where  the  teaching  of  articulation  and  of 
labial  reading  is  practiced.  For  a  Deaf  Mute  taught  in  this 
mode,  it  evidently  makes  very  little  difference  whether  the 
person  speaking  to  him  articulates  his  words  audibly,  or  merely 
goes  through  the  motions  of  the  lips  and  other  organs  of 
speech. 

Abstractly  considered,  therefore,  I  consider  that  method 
of  communicating  ideas  possible.  But  two  things  are  to  be 
specially  observed.  In  the  first  place,  long  and  constant 
practice,  both  on  the  part  of  the  Deaf  person,  and  of  the  indi- 
vidual communicating  with  him,  is  necessary  before  this  faculty 
is  acquired,  even  in  a  limited  degree ;  and  secondly,  the  sounds 
uttered  by  tha  Deaf  person  and  the  motions  of  the  lips,  would 
probably,  I  may  say  in  a  majority  of  cases  certainly,  be  unin- 
telligible and  unmeaning  to  all  except  the  person  or  persons 
accustomed  to  them,  and  in  the  constant  habit  of  thus  commu- 
nicating with  him. 

In  the  specific  case  which  you  present,  I  am,  of  course,  unable 
to  give  an  opinion,  not  being  acquainted  with  facts  and  circum- 
stances indispensable  to  the  formation  of  a  correct  judgment. 
But  if  these  sisters  have  been  long  in  the  habit  of  conversing  in 
the  manner  you  describe,  I  should  consider  it  highly  probable, 
their  previous  good  character  for  veracity  being  presumed,  that 
the  questions  and  answers  were  truly  and  faithfully  interpreted, 
not  perhaps  in  the  precise  terms  in  which  they  are  given,  but 
in  language  which  use  had  rendered  intelligible  to  both. 

In  such  a  case,  the  signs  made  by  the  expressions  of  the 
countenance  and  the  movements  of  the  lips,  are  analogous 
to  those  made  by  the  hands  and  arms.  The  use  of  neither 
of  these  sorts  of  signs  indicates  or  requires  a  knowledge  of 
the  inflections  of  the  parts  of  speech,  or  the  laws  which  govern 


52 

the  collocation  and  arrangement  of  words  in  connected  discourse. 
The  significancy  and  intelligibility  of  this  sort  of  labial  signs, 
like  those  of  manual  signs,  would  be  the  growth  of  slow  pro- 
gress, patient  effort,  and  daily,  even  hourly  use,  for  no  incon- 
siderable length  of  time.  In  the  case  of  persons  who  have 
become  deaf  in  childhood,  after  learning  to  speak  more  or  less, 
the  motions  of  the  lips  serve  to  suggest  words  still  remembered. 
They  read  words  in  those  motions,  as  we  do  on  paper,  much 
less  distinctly  indeed :  more  like  reading  short  hand,  where 
some  words  being  clearly  made  out,  others  are  guessed  at  by 
the  connection.  But  with  one  deaf  from  birth,  the  ideas  must 
be  attached  directly  to  the  motions  of  the  lips,  and  accompany- 
ing grimaces,  or  distortions  of  the  countenance.  A  person 
attempting  to  establish  communication  with  a  Deaf  Mute  in 
this  mode,  would  naturally  begin  with  single  words,  names 
of  objects  in  sight,  and  of  simple  actions  and  obvious  qualities. 
The  meaning  of  each  word  or  labial  sign  is  thus  first  established 
by  convention,  and  with  time  and  unwearied  pains,  a  Deaf  Mute 
may  be  enabled  to  communicate  on  any  ordinary  matters  of 
daily  use,  by  means  of  a  peculiar  dialect  thus  formed;  the 
terms  of  which  are  to  the  speaking  person  words  probably  in 
an  inverted  and  broken  order, — and  to  the  Deaf  Mute  labial 
signs,  each  representing  directly  an  idea.  In  the  case  of  the 
sisters  now  in  question,  it  is  probable  they  did  not  use  the  same 
phraseology  that  marks  the  conversation  of  other  persons ;  that 
is  to  say,  the  words  of  which  they  imitated  the  labial  motions 
were  not  in  the  order  in  which  those  who  hear  and  speak 
arrange  them,  nor  always  the  same  words.  The  preference 
would  be  given  for  words  more  distinctly  marked  on  the  lips  ; 
and,  to  save  the  labor  of  learning  synonymes,  one  familiar 
word  would  be  made  to  represent  several  expressing  similar 
ideas.  Thus  the  terms  they  used  would  probably  suggest  the 
outlines  only  of  ideas,  made  more  definite  by  the  accompanying 
expression  of  the  countenance,  and,  when  interpreted,  to  make 
them  intelligible  to  others,  would  be  reduced  to  a  grammatical 
arrangement,  as  in  the  examples  cited  by  you.  The  language, 
therefore,  embodying  the  answers  of  the  Deaf  Mute  girl  to  the 
question  proposed  to  her,  was  not  that  uttered  by  her,  in  so 
many  words,  but  the  language  of  her  older  sister  interpreting 
the  idea  intended  to  be  expressed. 


53 

Instances  have  occurred  in  my  own  practice,  and  I  may  say 
not  a  few,  of  parents  who  have  conversed  with  their  Deaf  chil- 
dren in  this  manner,  and  without  the  intervention  of  signs 
of  any  kind.  Such  cases,  of  course,  are  much  more  common 
where  the  children  learned  to  speak  before  becoming  deaf;  but, 
as  I  have  just  explained,  it  is  possible  to  establish  with  a  bright 
and  intelligent  Deaf  Mute  from  birth  a  quite  copious  dialect 
of  labial  motions  and  grimaces.  There  are  now  in  this  Institu- 
tion two  pupils,  a  brother  and  sister,  whose  father  always  com- 
municated with  them,  and  received  their  replies  by  a  system 
of  "labial  reading."  On  the  receipt  of  your  letter,  I  called 
these  pupils  into  my  room  for  the  purpose  of  making  an  experi- 
ment. I  directed  the  brother  to  put  to  his  sister  certain  ques- 
tions which  I  presented  to  him  in  writing,  and  which  she,  of 
course,  did  not  see.  The  result  was  satisfactory,  though  I 
remarked,  that  in  some  instances,  the  language  of  the  question 
was  changed  by  the  substitution  of  familiar  words  for  those  less 
familiar.  In  reply  to  my  question  how  they  had  acquired  this 
faculty,  they  replied,  that  they  had  grown  into  it  by  long  habit. 

One  word  respecting  the  inference  which  you  draw  as  to  the 
necessity  of  schools  specially  for  the  Deaf  and  Dumb.  A  mo- 
ment's reflection,  I  think,  will  show  you  the  fallacy  of  your  con- 
clusion. Though  this  faculty  of  reading  on  the  lips,  and  the 
power  of  expressing  ideas  by  the  motions  of  the  vocal  organs,  or, 
I  may  say  more  correctly,  by  sounds  inarticulate  and  unintelligi- 
ble except  to  those  accustomed  to  them,  may,  by  long  continued 
and  laborious  effort,  be  acquired  by  some  Deaf  persons — it  is  not 
possible  for  all.  And  even  in  the  case  of  those  few,  it  is  obvi- 
ously by  no  means  available  for  general  intercourse,  whether 
for  social  enjoyment,  or  in  matters  of  business,  the  power  of 
communicating  in  this  mode  being  (except  in  rare  cases  of  the 
success  of  accomplished  teachers  of  articulation)  confined  to  the 
few  with  whom  the  Deaf  Mute  has  been  in  constant  communica- 
tion for  a  long  series  of  years,  generally  beginning  in  early  in- 
fancy, as  for  instance,  among  the  members  of  the  same  family. 
This  was  forcibly  illustrated  in  the  necessity  for  an  interpreter 
between  the  court  and  the  witness,  in  the  case  which  you 
present. 

And  I  may  add  that  the  dialect  of  labial  motions  and  grim- 
aces established  in  the  family  with  a  Deaf  child  will  be  too 


54 

meagre  and  imperfect  to  enable  the  Deaf  Mute  to  attain  such  a 
mental  and  moral  development  as  is  easily  and  readily  attained 
under  the  system  pursued  in  a  special  school;  such  a  develop- 
ment, in  short,  as  might  have  made  the  young  woman  you  men- 
tion a  useful,  respected  and  happy  member  of  socioty. 

You  will  perceive  from  the  above,  that  I  consider  it  possible 
for  a  person  deaf  from  birth  to  receive  and  impart  ideas  in  the 
manner  you  describe.  Whether  there  was  collusion  between  the 
sisters,  is  a  question  to  be  determined  by  facts,  and  not  on  ab- 
stract principles.  It  is.  however,  worthy  of  remark,  that  the 
supposition  of  collusion  would  imply  the  possibility  of  intercom- 
munication of  some  kind  between  the  parties. 
Very  respectfully  yours, 

HARVEY  P.  PEET. 
THOMAS  V.  KUSSELL,  ESQ. 


ST.  LAWRENCE    COUNTY   SESSIONS. 

The  Overseers  of  the  Poor  of  the  Town  of  Cfouverneur "} 

vs. 
George  P.  Tuttle.  j 

JOSEPH  BARNES,  ESQ. 

Dear  Sir, — The  above  action  was  an  appeal  from 
the  decision  of  two  justices  of  the  peace  of  the  town  of  Gouv- 
erneur  affiliating  upon  the  defendant  Tuttle,  a  bastard  child  born 
of  Mary  Coats,  a  Deaf  Mute.  It  appeared  that  the  said  Mary 
Coats  was  deaf  and  dumb  from  her  nativity  and  had  received  no 
scientific  instruction ;  that  her  relatives  were  in  low  circum- 
stances as  to  property,  and  no  method  of  communication  as  to 
things  not  in  sight  was  ever  established  between  her  and  her 
sister,  or  any  of  her  family,  save  by  the  motion  of  the  lips  and 
mouth.  I  was  retained  as  counsel  for  the  Overseers  of  the 
Poor.  Olive  Thayer  was  sister  of  the  Mute,  and  the  only  me- 
dium of  communication  between  her  and  the  court. 

When  I  was  first  retained,  I  was  exceedingly  incredulous 
touching  the  ability  to  communicate  between  Mary  and  her  sister, 
in  the  manner  alleged,  particularly  the  abstract  idea  contained 
in  an  oath,  or  the  capacity  of  the  Mute,  by  motion  of  the  lips, 


to  convey  to  her  sister  the  fact  of  sexual  connection,  impregna- 
tion, and  the  name  of  the  father  ;  and  the  time  and  place  of  the 
sexual  intercourse ;  and  accepted  a  retainer  with  the  greatest  re- 
luctance, and  only  after  assurances  of  the  neighbors  of  their  en- 
tire belief  in  the  integrity  of  Mrs.  Thayer.  I  then,  before  the 
trial  came  on,  visited  Mrs.  Thayer  and  the  Mute,  several  times 
questioning  the  Mute  through  her  sister,  and  sending  the  Mute 
for  several  articles,  such  as  water  and  candles,  into  different 
rooms,  and  under  circumstances  Avhere  it  seemed  to  me  impos- 
sible any  other  medium  than  the  lips  of  her  sister  could  have 
been  used  to  communicate  my  mandates,  which  were  in  every  in- 
stance obeyed,  and  finally,  in  response  of  questions  propounded 
by  me,  and  communicated  to  her,  by  movements  of  her  sister's  lips, 
for  the  purpose  of  ascertaining  whether  she  could  understand 
the  nature  of  an  oath.  I  thought  it  quite  plain  she  understood 
her,  that  she  was  to  be  brought  before  a  court,  and  required  to 
tell  the  truth  as  to  who  was  the  father  of  her  child.  She,  by 
signs  and  acts  intelligible  to  me,  without  her  sister's  aid,  gave 
me  to  understand,  if  she  told  false,  she  would  be  taken  from  her 
child  and  imprisoned.  I  could  not  make  out  that  she  had  any  idea 
of  an  unseen  Omniscient  power,  or  of  future  rewards ;  but  hav- 
ing satisfied  myself  that  the  Mute  and  her  sister  could  communi- 
cate with  each  other,  through  motions  of  the  lips  by  her  sister, 
and  signs  and  motions  by  the  Mute,  I  entered  upon  the  trial  of 
the  appeal  with  the  zeal  becoming  a  man  who  believed  a  Deaf 
Mute  had  been  seduced  by  a  man  under  the  belief  that  sexual  in- 
tercourse was  marriage. 

For  some  six  or  eight  hours  before  the  Mute,  was  sworn,  va- 
rious questions  were  propounded,  and  directions  given  to  Mrs. 
Thayer  to  direct  the  Mute  by  her  lips  to  do  certain  things.  In 
nearly  every  instance  the  Mute  did  the  act  required  of  her,  and 
I  was,  and  I  believe  the  court  and  bystanders  were  all  entirely 
satisfied  that  Mrs.  Thayer  made  no  motion,  look  or  gesture,  save 
with  her  lips,  indicating  to  the  Mute  what  was  desired  of  her. 

The  counsel  of  the  defendant  placed,  or  caused  to  be  placed, 
in  a  room  near  the  foot  of  the  stairs  leading  from  the  court 
room  to  the  front  door,  or  principal  entrance,  on  the  left  hand  side 
of  the  lower  hall,  an  umbrella,  and  bid  the  sister  to  describe  the 
location  of  the  umbrella  and  send  the  Mute  after  it.  The  Mute 
left  the  court  room,  went  down  winding  stairs,  and  sought  the 


56 

umbrella  in  a  room  opposite  to  the  one  where  the  umbrella  was 
placed.  The  Mute  returned,  saying,  as  Mrs.  Thayer  said,  there 
was  no  umbrella  there.  Her  sister  was  informed  by  the  con- 
stable, that  the  Mute  went  to  the  room  opposite  the  one  she  was 
directed  to  go  to.  Mrs.  Thayer,  as  she  said,  explained  to  the 
Mute  by  motions  of  her  lips  that  the  umbrella  was  in  the  room 
opposite  the  one  she  went  to.  In  an  instant  the  eyes  of  the 
Mute  flashed  with  intelligence,  and  she  flew  from  the  court  room 
and  brought  the  umbrella.  Many  other  like  experiments  were 
tried,  and  most  if  not  every  one  that  related  to  common  and  fa- 
miliar objects,  were  correctly  responded  to  by  the  Mute,  by  doing 
the  act  demanded  of  her.  I  believe  all  were  convinced.  Mrs. 
Thayer  made  no  sign  save  with  her  lips. 

The  order  of  filiation  was  confirmed  by  the  court. 

This  statement,  though  an  imperfect  one,  will,  I  think,  give  a 
tolerable  idea  of  the  very  interesting  trial  on  the  affiliation  of  the 
child  of  Mary  Coats,  and,  I  hope,  afford  Mr.  Peet  the  informa- 
tion he  solicits  in  his  letter  to  you. 

I  have  written  in  haste  and  have  no  time  to  revise  the  literary 
execution  of  this  account. 

Respectfully,  yours, 

BISHOP  PERKINS. 


CANTON,  October  24,  1856. 
DR.  H.  P.  PEET  : 

My  Dear  Sir, — I  this  day  received  the  enclosed  statement  from 
Hon.  Bishop  Perkins  after  so  long  delay.  His  statement  is  not 
as  full  as  the  facts  would  warrant,  giving  the  several  experiments 
in  the  court  room,  and  being  present  myself,  one  of  the  Court 
of  the  County  Sessions,  well  recollect  the  case :  the  court  room 
full,  not  a  person  doubted  her  ability  to  communicate  with  the 
Mute  in  the  way  described  by  Mr.  Perkins. 

In  addition  to  the  statement  of  Mr.  Perkins,  I  would  say  that 
the  defendant's  counsel,  as  well  as  Mr.  Perkins,  counsel  for  Over- 
seers of  the  Poor,  directed  Mrs.  Thayer  to  communicate  with 
Mary  by  her  lips — without  the  use  of  her  hands — looking  her 
full  in  the  face  and  directing  her  to  snuff'  the  candle  on  the  desk, 
which  she  did  at  -once — then  to  extinguish  a  certain  other  candle 


57 

then  burning  in  another  part  of  the  court  room — select  the  Bi 
ble  from  two  or  three  piles  of  books  on  the  lawyers'  table — then 
to  point  out  to  the  defendant  the  father  of  her  child  in  a  crowded 
court  room — send  her  for  water  and  other  things. 

It  is  proper  here  to  say,  that  many  experiments  to  test  the 
witness,  at  the  request  of  the  defendant's  counsel,  one  after 
another,  until  she  was  sent  for  the  umbrella  down  the  stairs — 
passing  the  length  of  the  court  room — descending  winding  stairs 
to  the  centre  hall  of  court  house — jury  rooms  on  either  side  of 
hall — turning  right  and  left  in  the  hall — opening  door — taking 
the  umbrella  into  the  court  room  above  to  her  sister.  This 
seemed  to  be  satisfactory  to  all  parties. 

I  am,  dear  sir,  truly  yours, 

JOSEPH  BARNES.] 

In  Beck's  Medical  Jurisprudence,  (vol.  i,  p.  855,)  we  find 
a  case  cited  somewhat  similar  to  that  just  mentioned  as  occur- 
ring in  the  State  of  New  York.  James  Whyte  was  charged, 
in  April,  1842,  at  the  Circuit  Court  of  Justiciary,  held  at 
Stirling  in  Scotland,  with  robbery.  "  The  principal  witness, 
James  Shaw,  was  called,  and  one  of  the  crown  witnesses, 
named  McFarlane,  having  been  sworn  to  act  as  interpreter, 
McF.  deposed  that  he  had  known  Shaw  from  his  earliest  years, 
had  been  on  intimate  footing  with  him,  and  was,  on  that 
account,  able  to  communicate  with  him  better  than  any  other 
person  whom  he  knew ;  that  Shaw  was  not  born  deaf,  but 
became  so  by  disease  about  the  age  of  seven  years;  that  he 
had  been  stone-deaf  ever  since,  and  had  lost,  in  a  great  mea- 
sure, the  faculty  of  speech ;  that  he  could  talk  a  little,  but 
so  very  inarticulately  that  none  but  those  who  were  in  the 
habit  of  communicating  with  him  could  understand  his  mean- 
ing ;  that  the  mode  of  communicating  with  him  was  partly 
by  signs,  and  partly  by  the  motions  of  the  lips.  The  inter- 
preter having  been  desired  by  the  court  to  repeat  the  oath 
to  the  witness,  after  communicating  with  him,  stated  that 
though  he  believed  Shaw  to  be  naturally  honest  and  trust- 
worthy, he  found  it  impossible  to  convey  to  his  mind  any  idea 
of  an  oath:  that  the  subject  of  their  communications  had 
always  been  about  ordinary  country  matters,  arid  that  as  Shaw 
had  received  no  education  whatever,  it  was  his  decided  opinion 


58 

that  he  could  not  comprehend  the  obligation  of  speaking  the 
truth."  In  these  circumstances,  the  court  held  that  the  wit- 
ness could  not  be  sworn,  and  he  was  accordingly  rejected. 

This  decision  is  very  unsatisfactory.  A  rule  of  law  which 
may  preclude  a  man  Avho  has  been  robbed  from  giving  evidence 
against  the  robber,  thus  defeating  the  ends  of  justice,  ought 
not,  in  our  view,  to  be  based  on  the  mere  ignorance  of  the 
injured  party.  His  ignorance,  (in  this  case  certainly  not  from 
any  fault  of  his  own,)  makes  him  the  more  helpless,  and  hence 
more  deserving  of  the  protection  of  the  law.  We  think  the 
inquiry  ought  to  have  been,  not  whether  Shaw  understood  the 
nature  and  obligation  of  an  oath, — but  whether  he  was  likely 
to  tell  the  truth,  and  could  relate  clearly  doings  in  which 
he  was  concerned.  And  if  that  fact  was  established  to  the 
satisfaction  of  the  judges,  his  testimony  should  have  been 
admissible  for  what  it  was  worth. 

It  is  a  well  settled  rule  of  the  common  law,  of  general 
application  in  this  country  and  in  England,  that  no  witness 
is  competent,  unless  he  has  a  conception  of  divine  pun- 
ishment being  a  consequence  of  falsehood.  (1  Phillips'  Evi- 
dence, 6.)  Still  even  under  the  common  law  there  seem 
to  have  been  cases  in  which  this  rule  was  made  to  bend  to 
the  common  sense  view,  that  children  of  tender  years,  and 
others  like  them,  are  as  innocent  as  they  are  ignorant,  and 
when  not  perverted,  or  under  the  influence  of  interested  persons, 
naturally  and  spontaneously  tell  the  truth.  No  one  will  affirm 
that  the  ceremony  of  administering  an  oath  always  secures 
truthful  answers  from  the  witness ;  and  we  venture  to  say, 
there  is  no  judge  or  lawyef,  who  would  not  sooner  believe 
the  artless  relation  of  his  child  of  five  or  six  years,  whom  he  has 
never  known  to  tell  an  untruth,  than  the  oath  of  an  over-age 
witness  Avhose  interests  or  feelings  are  involved  in  the  cause.* 

*  In  an  old  American  edition  of  the  famous  English  compilation,  Burns' 
Justice,  (Conductor  Generalis,  etc.,  by  James  Parker,  New  York,  1788,)  we 
find  the  following  (p.  170,  Evidence) :  "  In  many  cases  an  infant  of  tender 
years  may  be  examined  without  oath,  where  the  exigence  of  the  case  requires 
it ;  which  possibly,  being  fortified  with  concurrent  evidence,  may  be  of  some 
•weight,  especially  in  cases  of  rape,  buggery,  and  such  crimes  as  are  practiced 
upon  children.  2  H.  H.  (Hale's  Hist.)  279,  284;  Str.  700."  Now  a  Deaf 
Mute,  as  ignorant  and  uncultivated  as  Shaw,  is  almost  precisely  in  the  mental 
and  moral  condition  of  a  little  child. 


59  • 

We  see,  therefore,  no  reason  why,  if  such  a  Deaf-Mute 
witness  should  be  found  incapable  of  understanding  the  nature 
of  an  oath,  that  ceremony  might  not  be  dispensed  with,  and 
his  testimony  taken,  leaving  to  the  jury  to  judge,  from  the 
consistency  of  his  narrative,  from  confirmatory  circumctances, 
or  evidence  of  others,  and  from  the  reputation  of  the  witness 
among  his  acquaintances,  what  degree  of  credit  should  be 
attached  to  his  statements.  If  it  should  be  established  that 
a  Deaf  Mute  who,  for  lack  of  education,  cannot  understand 
the  nature  of  an  oath,  is  incompetent  to  give  testimony  against 
those  who  have  wronged  him,  evidently  this  most  unfortunate 
class  of  persons  will  be  at  the  mercy  of  the  evil  disposed. 

The  extent  to  which  advocates  will  push  a  point  of  form, 
like  that  under  consideration,  in  order  to  gain  an  advantage 
in  a  bad  cause,  is  strikingly  exemplified  in  another  Scotch 
case  cited  by  Beck,  (vol.  i,  pp.  863-4) : 

"An  interesting  discussion  took  place  last  winter  in  the 
High  Court  of  Justiciary,  as  to  whether  or  not  a  Deaf  Mute 
was  capable  of  giving  evidence.  A  rape  had  been  committed 
on  a  Deaf  and  Dumb  girl,  and  her  evidence  was  objected  to 
by  the  counsel  for  the  prisoner,  who  argued  that  though  it  was 
admitted  to  the  fullest  extent,  that  she  had  a  perfect  idea 
of  the  existence  of  a  Supreme  Being  and  a  future  state,  and 
though  she  might  be  perfectly  convinced  of  the  obligation  under 
which  she  lay  to  speak  the  truth,  yet  every  one  had  as  perfect 
a  knowledge  at  least  of  these  facts  and  obligations  as  she  could 
possibly  have,  yet  their  testimony  went  for  nothing  unless 
confirmed  by  an  oath:  and  as  it  was  obvious  she  could  not 
give  an  oath,  her  testimony  must  go  for  nothing."  (Dunlap.) 

Such  pleading  as  this  is  a  disgrace  to  the  Scotch  bar.  To 
argue  that  a  Deaf  Mute,  in  the  rudest  state  of  ignorance,  was 
not  a  competent  witness,  because  he  could  not  understand  the 
nature  and  obligation  of  an  oath,  seems  plausible;  but  to  argue 
that  one  who  has  been  educated,  and  is  fully  aware  of  the  re- 
ligious nature  and  solemn  significance  of  an  oath,  and  of  the 
temporal  and  eternal  consequences  of  perjury,  is  not  a  competent 
witness,  merely  because  she  cannot  comply  with  a  mere  form, 
adapted  to  the  use  of  those  who  hear  and  speak,  is  to  outrage 
every  sentiment  of  justice,  every  dictate  of  common  sense.  We 
cannot  believe  the  court  lent  any  countenance  to  such  a  plea. 


60 

Beck  docs  not,  in  this  place,  give  the  decision;  but  the  case 
seems  to  us  to  have  been  the  same  thus  mentioned  by  him  (on 
page  855):  "The  chief  witness  in  a  case  of  rape  was  deaf  and 
dumb,  but  had  been  instructed,  and  her  intelligence  proved  by 
an  examination  of  her  teachers." 

In  England,  it  has  been  decided  that  a  person  born  deaf  and 
dumb,  even  if  utterly  unable  to  read  and  write,  is  competent  as  a 
witness,  provided  he  evinces  sufficient  understanding.  This  was 
determined  in  a  case  at  the  Old  Bailey,  in  January  sessions, 
1786,  on  the  trial  of  one  William  Bartlett  for  simple  grand 
larceny.  "John  Ruston,  a  man  deaf  and  dumb  from  his  birth, 
was  produced  as  a  witness  on  the  part  of  the  crown.  Martha 
Ruston,  his  sister,  being  examined  on  the  voir  dire,  it  appeared 
that  she  and  her  brother  had  been,  for  a  series  of  years,  enabled 
to  understand  each  other  by  means  of  certain  arbitrary  signs 
and  motions,  which  time  and  necessity  had  invented  between 
them.  She  acknowledged  that  these  signs  and  motions  were  not 
significant  of  letters,  syllables,  words  or  sentences,  but  expressive 
of  general  propositions  and  entire  conceptions  of  the  mind,  and 
the  subjects  of  their  conversation  had  been  in  general  confined 
to  domestic  concerns  and  familiar  occurrences  of  life.  She  be- 
lieved, however,  that  her  brother  had  a  perfect  knowledge  of  the 
tenets  of  Christianity,  and  was  certain  that  she  could  communi- 
cate to  him  true  notions  of  the  moral  and  religious  nature  of  an 
oath,  and  of  the  temporal  dangers  of  perjury. 

"  It  was  objected  by  the  prisoner's  counsel,  that  although 
these  modes  of  conveying  intelligence  might  be  capable  of  im- 
pressing the  mind  with  some  simple  ideas  of  the  existence  of  a 
God,  and  of  a  future  state  of  rewards  and  punishments,  yet  they 
were  utterly  incapable  of  communicating  any  perfect  notions  of 
the  vast  and  complicated  system  of  the  Christian  religion,  and 
thence  the  witness  could  not  with  propriety  be  sworn  on  the 
Holy  Gospels.  The  difficulty  of  arraigning  a  man  for  perjury, 
whom  the  law  presumes  to  be  an  idiot,  and  who  is,  consequently, 
incapable  of  being  instructed  in  the  nature  of  the  proceedings 
against  him,  was  also  urged  against  the  admissibility  of  the 
witness. 

"But  the  court  overruled  the  objections,  and  John  Ruston 
was  sworn  to  depose  '  the  truth,'  and  Martha  Ruston  '  well  and 
truly  to  interpret  to  John  Ruston,  a  witness  here  produced  in 


61 

behalf  of  the  King  against  William  Bartlett,  the  questions  and 
demands  made  by  the  court  to  the  said  John  Huston,  and  his 
answers  to  them.'  The  prisoner  was  found  guilty,  and  received 
sentence  of  transportation  for  seven  years.  (Phillips'  Law  of 
Evidence,  p.  14;  Luch's  Cases  in  Crown  Law,  p.  455.)" 

The  only  essential  difference  between  this  case  and  the  Scotch 
case,  in  which  .the  evidence  of  John  Shaw  was  rejected,  is  that, 
in  the  case  of  John  Huston,  his  sister  professed  to  be  able  to 
communicate  to  him  by  signs  "  true  notions  of  the  moral  and  re- 
ligious nature  of  an  oath,"  whereas  the  interpreter  of  Shaw  did 
not  believe  he  could  communicate  any  such  ideas  to  him.  Martha 
Huston  might  have  overrated  the  capacity  of  her  brother,  and 
McFarlanc  might  have  underrated  the  capacity  of  his  friend. 
When  we  recollect  that  Shaw  could  hear  and  speak  to  the  age  of 
seven,  it  seems  improbable  that  he  should  not  have  retained  some 
notions  on  religious  matters,  and  on  the  obligation  of  speaking 
the  truth,  though  he  might  have  lost  the  ability  to  express  them 
clearly.  We  are  persuaded  that  a  person  expert  in  the  language 
of  the  Deaf  and  Dumb,  and  accustomed  to  express  in  that  lan- 
guage the  rudiments  of  moral  and  religious  truth,  would  have 
found  in  Shaw,  as  well  as  in  Huston,  sufficient  intelligence  and 
moral  sense  to  admit  of  his  evidence  being  received. 

We  have  found  but  one  American  case,  (Snyder  v.  Nation,  5 
Blackford's  Reports,  295,  State  of  Indiana,)  in  which  a  Deaf 
Mute's  comprehension  of  the  religious  obligation  of  an  oath  came 
in  question.  The  action  was  one  for  assault  and  battery,  and 
the  plaintiff  produced  a  Deaf  Mute  as  a  witness.  The  compe- 
tency of  the  witness  being  objected  to,  the  court  caused  him  to 
be  examined  by  means  of  signs,  touching  the  extent  of  his  know- 
ledge of  the  nature  of  an  oath.  It  appeared  that  he  understood 
that  perjury  was  punishable  by  law,  but  he  had  no  conception  of 
the  religious  obligation  of  an  oath.  The  presiding  judge,  how- 
ever admitted  him  to  testify,  and  the  interpreter  having  sworn 
that  he  could  communicate  with  him  by  signs,  he  was  examined 
as  a  witness  through  the  interpreter.  From  this  decision  an 
appeal  was  taken,  and  Dewers,  justice,  in  affirming  the  ruling  of 
the  judge  at  the  trial,  said :  "  That  a  witness  is  deaf  and  dumb, 
forms  no  objection  to  his  admissibility :  such  a  person,  who  can 
be  communicated  with  by  signs,  is  a  competent  witness  at  the 
common  law,  if  he  has  sufficient  discretion,  and  a  proper  sense 


62 

of  the  sanctity  of  an  oath.  But  as  the  statute  of  Indiana  pro- 
vided that  want  of  religious  belief  should  not  affect  the  compe- 
tency of  the  witness,  but  should  only  go  to  his  credibility,  that 
that  removed  the  objection  to  the  witness  that  would  otherwise 
have  existed  on  account  of  his  ignorance  of  the  moral  responsi- 
bility of  the  oath,  apart  from  temporal  punishment."  So  that  it 
seems,  from  this  decision,  that  ignorance  on  the  part  of  a  Deaf 
Mute  of  the  religious  obligation  of  an  oath,  would  exclude  him  as 
a  witness,  except  in  States,  like  Indiana  and  New  York,  where 
the  religious  test  is  abolished.  The  extent  to  which  this  religious 
test  is  sometimes  carried,  may  be  judged  from  an  English  case 
decided  in  1836.  A  woman  was  indicted  for  the  murder  of  her 
husband,  and  their  child,  a  girl  of  the  age  of  eight  years,  was 
brought  upon  the  stand  as  a  witness.  It  appeared,  that  before 
the  death  of  the  deceased,  the  child  had  never  heard  of  God,  had 
never  prayed,  knew  nothing  of  a  future  state  of  rewards  and 
punishments,  or  of  the  nature  of  an  oath  ;  but,  after  that  event, 
had  been  visited  by  clergymen,  who  instructed  her  as  to  the 
nature  of  an  oath.  When  examined  by  the  judge,  she  answered 
that  she  should  go  to  hell  if  she  told  a  lie ;  that  hell  was  under 
the  kitchen  grate;  but  had  no  other  intelligence  as  to  religion  or 
a  future  state.  She  was  not  allowed  to  testify.  (The  King  v. 
Rachel  Williams,  1  Car.  &  Pay.  320.)* 

We  have  before  referred  to  the  case  of  Morrison  and  Seward 
(3  Carrington  and  Payne,  p.  127,)  which  is  of  interest 
as  giving  the  views  of  an  English  judge,  as  to  the  manner  in 
which  the  evidence  of  a  Deaf  Mute  should  be  taken,  when  he 
is  able  to  read  and  write.  "In  that  case  an  apprentice  was 
called  as  a  witness.  He  had  been  born  deaf  and  dumb,  and 
an  interpreter  was  sworn,  who  put  questions  to  him  by  signs 
made  with  his  fingers,  f  and  was  answered  in  the  same  mode. 


*  After  the  case  just  cited,  the  reader  may  not  unprofitably  consult  an 
imaginary  case  reported  by  Charles  Dickens;  we  refer  to  the  rejection  of  the 
testimony  of  the  boy  Jo,  on  the  coroner's  inquest.  (Bleak  House,  chapter  xi.) 
We  hope  the  time  may  come  when,  in  other  States  as  well  as  Indiana  and  New 
York,  technical  objections  to  "competency"  may  be  done  away  with,  and  all 
the  evidence,  that  a  candid  man  would  consider  in  making  up  his  private 
•opinion,  admitted  for  what  it  may  be  worth. 

f  Evidently  by  a  Manual  Alphabet, 


63 

The  interpreter  said  that  he  spelt  every  word  to  the  witness 
completely.  It  appeared  that  the  witness  was  able  to  write. 

Chief  Justice  Best  observed,  I  have  been  doubting  whether,  as 
this  lad  can  write,  we  ought  not  to  make  him  write  his  answers. 
We  are  bound  to  adopt  the  best  mode.  I  should  certainly 
receive  the  present  mode  of  interpreting  even  in  a  capital  case ; 
but  I  think,  when  the  witness  can  write,  that  is  a  more  certain 
mode." 

On  this  we  observe  that,  where  the  witness  can  read  and  write 
perfectly  well,  the  process  prescribed  by  the  French  Code — ques- 
tions and  answers  in  writing — is  undoubtedly  the  best  mode;  but 
there  are  very  various  degrees  of  skill  in  written  language  among 
educated  Mutes;  and  the  greater  number  of  them  understand 
written  language  more  or  less  imperfectly.  There  are  many 
Deaf  Mutes  whose  knowledge  of  written  language  suffices  for 
simple  questions  and  answers  on  familiar  subjects,  who  would  yet 
be  unable  to  comprehend,  or  would  misapprehend  the  wording  of 
many  of  the  questions  that  would  be  put  before  them  in  a  court 
of  justice;  and,  on  the  other  hand,  will  fail  clearly  to  express 
their  own  meaning  in  words.  The  safest  way  is  to  provide  them 
with  an  interpreter  capable  of  explaining  what  they  do  not  un- 
derstand when  written ;  and  of  interpreting  their  meaning,  when 
their  own  skill  in  written  language  fails  to  render  it  truly.* 

Whether  a  Deaf  Mute  appears  as  a  witness  or  as  the  accused 
person,  some  care  and  skill  are  requisite  in  conducting  that 
preliminary  examination  in  writing  which  is  necessary  to  deter- 
mine how  far  he  is  conversant  with  written  language.  If  he 
answers  some  questions  with  evident  intelligence,  and  distinctly 
intimates  that  he  does  not  understand  others,  his  examination 
may  be  cautiously  proceeded  with ;  though  it  would  be  better,  if 
the  questions  he  does  not  understand  are  of  any  importance,  to 
wait  for  an  interpreter.  But  if  he  either  returns  no  answer  to 
simple  questions,  or  answers  by  merely  copying  the  questions, 
or  is  found  by  various  trials,  (as  by  varying  the  phraseology  of 
the  questions,)f  to  answer  at  random,  or  as  if  he  only  caught 


*  Since  writing  the  above,  we  find  our  views  confirmed  by  the  case  of  the 
State  of  Connecticut  vs.  DeWolf,  which  will  presently  be  cited  in  full. 

f  E.  g.  ask,  "Is  your  father  living?"  and  after  a  while  ask,  "  Is  your  father 
dead?"  If  he  has  not  understood  the  questions,  he  will  be  apt  to  give  contra- 


64 

the  meaning  of  one  or  two  words  in  the  question,  then  an  exami- 
nation in  writing  would  lead  to  nothing  but  mistakes  and  loss  of 
time,  if  not  to  serious  injustice  to  the  prisoner  through  misap- 
prehension, and  an  interpreter  skilled  in  communicating  Avith 
the  Deaf  and  Dumb,  or  familiar  with  the  particular  dialect  of 
the  individual,  is  quite  indispensable. 

HofFbauer,  a  German  writer  on  medical  jurisprudence,  cites 
the  case  of  one  Brunning,  an  uneducated  Deaf  Mute,  who  had 
killed  a  cutler  with  whom  he  was  traveling,  and  possessed  him- 
self of  the  cutler's  shoes  and  effects.*  Brunning  could  write  a 
little — that  is,  he  could  write  his  own  name,  and  could  copy 
words  placed  before  him.  When  asked  in  writing,  "  What  is 
your  name?"  he  wrote  "J.  Brunning ;"  but  when  asked,  "Is 
this  the  place  where  you  killed  the  cutler?"  he  merely  copied 
the  words.  When  asked,  "Where  is  your  money?"  after  study- 
ing the  words  attentively,  he  indicated,  by  expressive  gestures, 
that  it  had  been  taken  from  his  pockets  by  force,  as  indeed  was 
done  when  he  was  arrested.  He,  probably,  merely  understood 
the  word  money,  and  that  awakened  his  indignation  at  the 
manner  in  which  he  had  been  treated.  Other  questions  were 
put  before  him,  which,  from  his  gestures,  his  examiners  supposed 
he  understood;  but  those  who,  with  a  better  knowledge  of  the 
characteristics  of  Deaf  Mutes,  read  the  account  of  the  proceed- 
ings, will  conclude  that  he  merely  guessed  widely  at  the  meaning 
from  one  or  two  words,  or  answered  altogether  at  random.  For 
instance,  Avhen  the  question,  Who  killed  the  cutler?  was  written 
before  his  eyes,  he  again  wrote  his  own  name,  J.  Brunning,  and 
at  the  same  time  pointed  to  himself,  not  as  we  believe,  intending 
to  accuse  himself  of  the  murder,  though  his  examiners  so  received 
it,  but  supposing  that  the  question  was  an  invitation  to  write  his 
name.  He  had  asserted  (by  signs)  that  the  cutler  had  taken 
from  him,  while  he  slept,  a  box  and  money;  and  was  asked, 
"Whether  the  sack  shown  to  him  was  the  same  he  had  taken 
from  the  man  who  had  stolen  from  his  pocket?"  the  examiners, 
and  even  Hoffbauer  in  commenting  on  the  case,  supposed  he 

dictory  answers.  This  is  for  such  questions  as  only  require  a  yes  or  no.  With 
some  other  questions,  as:  "How  old  are  you?"  "What  is  your  trade?" 
"How  long  has  your  father  been  dead?"  etc.,  the  answers  will  at  once  show 
whether  the  question  was  understood. 

*  This  case  occurred  in  December,  1764,  in  the  Duchy  of  Magdeburg. 


65 

understood  the  question,  because,  on  being  invited  to  take  "what 
belonged  to  him,  he  carefully  examined  the  box,  and  separated 
his  own  effects  from  the  rest;  but  Dr.  Itard  of  Paris,  in  a  note 
on  this  passage,  observes  with  reason,  that  no  imperfectly 
educated  Deaf  Mute  could  clearly  understand  a  question  thus 
complicatedj  and  loaded  with  pronouns.  Brunning  merely  fol- 
lowed his  instinct  in  claiming  the  box,  and  separating  his  own 
effects  from  the  rest,  without  having  any  idea  of  the  precise 
scope  of  the  question  placed  before  him.  We  have  cited  this 
case  as  an  illustration  of  the  danger  of  mutual  misunderstand- 
ings in  an  examination  by  writing  of  a  Deaf  Mute  who  can  only 
read  and  write  very  imperfectly. 

It  may  sometimes  happen  that  a  Deaf  Mute  criminal  may, 
from  a  hope  of  escaping  punishment,  feign  to  know  much  less  of 
writing  than  he  does.  He  may  be  aware  that  ignorance,  especi- 
ally in  his  circumstances,  excites  compassion,  and  is  held  in 
some  measure  to  excuse  faults.  In  such  cases,  Dr.  Itard  advises 
to  accuse  him  of  a  crime  much  more  serious  than,  and  altogether 
different  from  that  actually  charged  against  him.  If  he  can 
really  read  and  write,  his  surprise  and  indignation  will  break  out 
at  the  false  charge  in  a  manner  to  show  what  degree  of  skill  in 
written  language  he  actually  possesses.* 

We  will  close  this  branch  of  the  subject  by  giving  at  length 
an  important  case  already  referred  to,  the  State  of  Connecticut 
v.  De  Wolf,  (8  Conn.  Rep.  93,)  as  it  relates  not  only  to  the 
manner  of  examining  this  class  of  witnesses,  but  includes  other 
matters,  touching  their  character,  and  the  nature  and  effect  of 
their  testimony.  The  prisoner  De  Wolf  (a  young  physician) 
was  indicted  for  an  attempt  to  commit  a  rape  upon  the  person  of 
a  deaf  and  dumb  girl,  named  Celestia  Bull,f  on  the  15th  of  June, 
1828.  She  was  sworn  as  a  witness,  and  testified  to  the  princi- 
pal facts  by  signs,  which  were  interpreted  by  Wm.  W.  Turner,  a 
teacher  in  (and  now  the  principal  of)  the  American  Asylum  for 
the  education  of  the  Deaf  and  Dumb.  The  interpreter  testified 


*  Note  to  Iloffbauer's  Medicine  Ltgale,  Paris  edition,  1827,  page  223.  (Trans- 
lation of  M.  Chambeyron.) 

f  It  may  be  proper  to  observe  that  Celestia  was  deaf  from  the  age  of  two 
years,  but  that  those  who  are  deaf  from  so  early  an  age,  do  not  differ  apprecia- 
bly from  those  deaf  from  birth. 

5 


66 

that  Celestia  had  resided  in  the  Asylum  for  five  years ;  that 
she  was  well  acquainted  with  the  language  of  signs,  and  capable 
of  relating  facts  correctly  in  that  manner  ;  that  she  could  read 
and  write,  and  communicate  her  ideas  imperfectly  by  writing. 
It  was  objected  on  the  part  of  the  prisoner  that  she  should  not 
be  allowed  to  testify  by  signs,  but  ought  to  give  her  testimony  in 
her  own  words  in  writing,  but  the  judge  overruled  the  objection, 
and  she  was  allowed  to  testify  by  signs.  After  the  prisoner's 
counsel  had  cross-examined  her  in  relation  to  the  principal  fact 
charged,  and  she  had  returned  answers  that  went  to  discredit  her 
testimony.*  the  public  prosecutor,  before  any  attempt  was  made 
to  discredit  her  otherwise  than  by  such  cross-examination,  offered 
Polly  Rowley  as  a  witness  to  prove  that  Celestia  had  communi- 
cated to  her  the  same  story  which  she  had  related  upon  the  trial. 
The  prisoner's  counsel  objected,  but  their  objection  was  overruled. 
Polly  Rowley  was  then  put  upon  the  stand,  and  testified  that  in 
the  fall  of  1829,  Celestia  had  communicated  to  her  in  writing 
the  substance  of  what  she  now  testified  to  upon  the  trial,  but  that 
she,  the  witness,  did  not  know  where  the  writing  was.  The 
prisoner's  counsel  objected  to  this  testimony,  unless  the  writing 
was  produced  and  read  to  the  court ;  but  the  objection  was  over- 
ruled. The  public  prosecutor  then  offered  to  prove  that  the 
general  character  of  Celestia  for  truth  was  good  :  the  prisoner's 
counsel  objected,  but  the  testimony  was  received.  I  think,  said 
the  presiding  judge,  that  in  prosecutions  for  rape,  the  general 
character  of  the  witness  who  is  the  victim  of  the  outrage  may 
always  be  shown ;  but,  said  he,  without  deciding  this  point,  let  us 
look  for  a  moment  at  the  condition  of  this  woman.  She  may 
fitly  be  said  to  be  a  stranger  in  her  own  neighborhood.  Unable 
to  hear  or  speak,  she  is  excluded  from  society,  and  can  be  known 
only  to  a  few  of  her  relations  and  companions  in  affliction.  Had 
the  outrage  been  sworn  to  by  a  stranger  passing  transiently 
through  the  State,  it  would  certainly  have  been  proper  for  the 
State's  attorney  to  prove  the  character  of  the  witness.  I  think 
therefore,  upon  similar  principles,  that  it  was  proper  to  support 
the  character  of  this  witness.  The  prisoner's  counsel  then  at- 


*  The  questions  on  the  cross-examination  were  put  in  signs  through  another 
teacher  of  the  Asylum,  Rev.  Mr.  Brinsmate,  who  had  been  induced  to  attend 
the  trial  in  behalf  of  De  Wolf. 


6T 

tempted  to  discredit  the  prosecutor's  testimony,  by  showing  that 
she  had  given  different  accounts  of  the  transaction  on  oath  and 
in  writing;*  and  Celestia  having  sworn  that  she  had  concealed 
the  transaction  for  more  than  a  year,  assigning  as  a  reason  for 
it,  the  threats  and  influence  of  the  prisoner,  and  her  fear  of  him, 
the  public  prosecutor  offered  to  show  that  the  Deaf  and  Dumb 
have  a  sense  of  inferiority  to  other  people,  and  that,  as  a  class, 
they  are  easily  intimidated  ;  that  they  are  credulous,  sincere  and 
submissive,  and  that  this  was  the  character  of  Celestia.  The 
prisoner's  counsel  objected  to  the  evidence,  but  the  court  ad- 
mitted it.  The  prisoner  having  been  convicted,  an  application 
was  made  to  the  Supreme  Court  for  a  new  trial,  on  the  grounds : 
1st,  that  the  court  below  erred  in  allowing  the  witness  Celestia  to 
testify  by  signs  :  2d,  in  allowing  evidence  of  her  written  commu- 
nication to  Polly  Rowley,  without  the  production  of  the  paper, 
or  proof  that  it  could  not  be  found  after  diligent  search  :  3d,  in 
receiving  the  testimony  just  referred  to  as  to  the  sense  of  infe- 
riority felt  by  the  Deaf  and  Dumb  as  a  class,  and  their  credulous 
and  submissive  character,  &c. 

In  respect  to  the  admissibility  of  this  evidence,  the  court  were 
divided.  Justice  Peters  thought  that  the  court  below  were  right 
in  receiving  it ;  but  Justice  Dagget,  and  the  three  other  judges 
thought  otherwise ;  Dagget,  who  delivered  the  opinion  of  the 
majority,  saying  that  they  thought  this  decision  on  the  trial  er- 
roneous, as  opening  a  door  for  enquiries  interminable,  and  where, 
after  all,  no  satisfactory  result  can  be  obtained.  But  in  respect 
to  the  examination  of  Celestia  by  signs,  he  said,  the  other  judges 
concurring,  it  appeared  she  could  communicate  her  ideas  imper- 
fectly by  writing,  but  was  capable  of  relating  facts  correctly  by 
signs.  The  objection  then,  thus  viewed,  presents  the  absurdity, 
that  the  court  erred  in  resorting  to  the  most  perfect  mode  of  as- 
certaining the  truth.  The  mode  of  examination  adopted  by  the 
court  was  the  next  best  to  an  oral  examination,  which,  for  many 
obvious  reasons,  is  preferable  to  an  examination  in  writing,  but 
which  could  not  be  had  in  this  case,  from  the  condition  of  the 
witness.  A  new  trial  was  ordered  for  the  error  of  the  court  be- 
low, in  receiving  the  testimony  as  to  the  contrast  between  the 


*  If  this  was  so,  it  may  have  merely  proceeded  from  her  imperfect  skill  in. 
•written  language. 


68 

Deaf  and  Dumb  and  other  people  in  the  matters  referred  to  ; 
and  in  allowing  evidence  of  the  contents  of  the  written  paper 
without  producing  it,  or  showing  that  it  could  not  be  found  after 
a  diligent  search.* 

This  case  is  an  authority  for  assuming  and  declaring  it  to  be 
the  law,  as  it  certainly  is  the  dictate  of  reason,  that  in  the  exam- 
ination of  a  Deaf  and  Dumb  witness,  that  mode  is  to  be  adopted 
which  will  enable  the  witness  most  accurately  to  convey  his 
ideas.  To  which  we  would  add,  for  the  reasons  already  given, 
that  as  a  general  rule  (exceptions  have  been  noted  on  previous 
pages,)  an  examination  by  signs  through  a  competent  interpreter 
is  preferable  to  any  other  mode. 

In  regard  to  the  other  questions  raised  on  this  trial,  there  is 
room  for  difference  of  opinion.  It  appears  to  us  that  the  rule 
of  law  which  precludes  parol  evidence  of  the  contents  of  a 
written  paper,  except  upon  proof  that  the  paper  is  lost,  should 
not  be  as  stringently  enforced  in  the  case  of  conversations  held 
by  a  Deaf  Mute  in  writing  as  in  other  cases.  A  Deaf  Mute  who 
expressed  her  ideas,  as  was  the  case  with  Celestia,  but  imperfectly 
in  writing,  would,  at  the  time  of  writing,  explain  and  enforce  her 
meaning  by  accompanying  looks  and  gestures.  Hence  the  ac- 
tual impression  made  by  the  communication  at  the  time,  might 
be  quite  different  from  that  which  the  mere  writing  would  con- 
vey, especially  to  one  not  conversant  with  the  peculiar  idioms  of 
the  Deaf  and  Dumb.  The  writing  would  be  but  a  part  of  the 
actual  communication.  In  such  a  case,  supposing  that  Polly  and 
Celestia — as  from  the  circumstance  of  the  former  being  a  selected 
confidant  is  a  natural  inference — were  intimate,  and  understood 
each  other  perfectly,  it  is  evident  that  the  parol  evidence  of 
Polly  would  give  a  more  correct  idea  of  the  purport  of  Celes- 
tia's  communication  than  would  be  derived  from  a  mere  inspec- 
tion of  the  writing  itself,  supposing  it  could  be  found ;  and  it 
was  probably  a  loose  scrap  of  paper,  thrown  aside  when  the  con- 
versation ended.  If,  therefore,  (which  however  does  not  clearly 
appear  from  the  report,  but  is  very  probable  from  the  circum- 
stances, Celestia's  imperfect  acquaintance  with  written  language, 
and  the  delicate  nature  of  her  communication,  not  to  be  easily 

*  It  is  our  impression  that  the  prosecution  was  dropped.  Miss  B.  has  since 
married  a  Deaf  Mute. 


69 

put  wholly  in  words  by  one  little  skilled  in  written  language,)  if 
therefore,  the  communication  from  Celestia  to  Polly  was  by  wri- 
ting in  part,  explained  by  looks  and  gestures,  the  very  princi- 
ple which  required  the  examination  of  Celestia  by  signs,  would 
consider  the  evidence  of  Polly  as  to  the  purport  of  the  communi- 
cation as  of  more  weight  than  the  writing  itself;  it  would  be  in 
the  language  of  Justice  Dagget,  "  the  most  perfect  mode  of  as- 
certaining the  truth"  that  the  peculiar  case  would  admit. 

With  regard  to  the  alleged  credulous,  submissive,  and  timid 
character  of  the  Deaf  and  Dumb,  two  distinct  questions  arise : 
the  admissibility  of  such  evidence,  and  the  correctness  of  the 
opinion  expressed  by  Mr.  Turner.  We  will  consider  the  last 
first,  as  it  seems  proper  to  enquire  whether  we  have  any  thing  to 
prove,  before  we  enter  into  a  dispute  about  the  introduction  of 
our  evidence. 

We  need  hardly  say  that  there  are  no  peculiar  traits  of 
character  inherent  in  the  Deaf  and  Dumb,  as  such,  merely  as 
developments  of  some  peculiarity  of  organization.  What  pecu- 
liarities they  do  display  are  the  results  of  the  peculiarities  of 
their  circumstances.  They  are  comparatively  ignorant,  from 
the  greater  difficulty  of  obtaining  knowledge;  and  if  they  are 
credulous,  it  is  because  credulity  is  usually  in  proportion  to 
ignorance.  He  who  usually  hears  but  one  side  of  a  story,  be- 
lieves what  he  hears ;  he  who  hears  all  sides,  learns  to  doubt, 
and  to  weigh  probabilities.  The  Deaf  and  Dumb  must  feel,  in 
society,  a  sense  of  inferiority,  which  makes  them  dependent  and 
submissive  towards  those  in  whom  they  have  confidence  as  guides. 
It  is  the  same  feeling  that  would  make  a  blind  man  in  a  crowd, 
or  in  a  strange  locality,  cling  to  the  arm  of  a  friend  who  enjoys 
eyesight.  But  where  they  think  themselves  acquainted  with 
the  ground,  they  are  apt  to  display  sufficient  strength  of  will ; 
indeed,  willfulness  is  one  of  the  most  salient  faults  of  a  neglected 
or  petted  Deaf  Mute,  as  of  other  neglected  or  petted  children. 
Timidity  is,  we  think,  not  a  trait  of  their  character.  A  man 
who  recoils  from  a  haunted  house,  may  show  as  much  courage  as 
others  who  do  not  share  that  feeling,  when  there  is  a  real,  visible 
danger  to  be  met ;  and  if  Deaf  Mutes  are  liable  to  be  intimi- 
dated, it  is  to  be  ascribed  to  their  ignorance,  exaggerating  the 
power  of  him  who  attempts  to  intimidate  them,  and  riot  forseeing 
as  readily  as  others  would  the  means  of  defence. 


70 

It  is  obvious  that,  for  Deaf  Mute  girls,  the  chances  for  form- 
ing a  desirable  marriage  are  much  fewer  than  for  their  sisters 
and  companions  of  equal  or  even  inferior  personal  attractions, 
while  the  hope  and  desire  of  such  an  event  is  at  least  equally 
strong.  Hence,  they  are  apt  to  interpret  as  serious,  to  encourage 
by  receiving  them  with  evident  gratification,  attentions  which 
had  no  worthier  motives  than  curiosity  and  compassion,  and 
which  are  continued  merely  because  the  flirtation  is  agreeable. 
De  Wolf,  we  have  understood,  won  the  confidence  of  Celestia  by 
his  readiness  in  learning  to  converse  with  her  by  the  manual 
alphabet  and  signs.  A  Deaf  Mute,  isolated  in  society,  is  pecu- 
liarly susceptible  to  attentions  which  at  once  flatter  her  vanity, 
increase  her  social  enjoyments,  and  relieve  the  painful  sense  of 
inferiority  to  her  speaking  companions.  He  probably  acquired 
an  influence  over  her ;  and  having,  in  some  moment  of  tempta- 
tion, gone  farther  than  he  wished  to  have  known,  it  is  very 
natural  and  probable  that  he  should  exert  whatever  influence  her 
hopes,  her  fears,  and  her  ignorance  gave  him,  to  induce  her  to 
keep  the  transaction  secret. 

If  the  ignorance  of  the  Deaf  and  Dumb,  their  imperfect  appre- 
ciation of  consequences,  and  the  difficulty  for  them  of  finding 
sympathy  and  judicious  advice  in  delicate  circumstances,  have, 
as  we  believe,  a  tendency  to  induce  want  of  moral  strength  in 
the  way  of  appreciating  and  resenting  such  injuries  as  that  in 
question,  this  should  surely  not  make  them  the  less  worthy  of 
or  less  needful  of  the  protection  of  the  law.  It  certainly  ap- 
pears to  us  that  the  rule  of  the  law,  that  makes  so  long  a  silence 
after  such  an  outrage,  a  presumption  against  the  credibility  of 
the  witness,  might  be  somewhat  relaxed  in  circumstances  like 
these.  If  it  appeared  that  the  injured  woman  was  ignorant 
or  doubtful  of  the  consequences  of  disclosure,  feared  injury  to 
herself  in  character  and  feelings,  or  had  no  intimate  friend  to 
whom  she  could  feel  free  to  confide  such  a  secret,  or  who  was 
capable  of  urging  those  reasons  that  lead  us  to  prosecute  offences 
for  the  good  of  society,  or  for  the  abstract  interests  of  justice ; 
under  such  influences  it  does  not  appear  to  us  that  her  silence 
should  make  against  her  credibility,  if  her  statements  are  other- 
wise consistent  and  probable.  If  the  Deaf  and  Dumb  are  enti- 
tled to  sympathy  and  consideration  on  account  of  their  misfor- 
tune, the  ignorance  and  want  of  moral  strength,  which  are 


Tl 

the  natural  result  of  that  misfortune,  ought  also  to  be  con- 
sidered. 

We  might  extend  our  remarks  on  this  point,  had  we  such  a 
report  of  the  case  as  would  show  distinctly  the  reasons  on  which 
the  admission  of  this  evidence  was  pronounced  an  error.  Since 
the  ruling  of  the  court  below  was  supported  by  one  out  of  five  of 
the  justices  of  the  Supreme  Court,  there  would  appear  to  be  some 
doubt  on  this  matter,  and  it  seems  to  us  worthy  of  a  fuller  ex- 
amination. We  imagine  the  objections  of  De  Wolf's  counsel 
were  taken  under  the  impression  that  their  client's  cause  was 
sufficiently  prejudiced  by  the  natural  sympathy  of  a  jury  for  a 
woman  in  her  unhappy  circumstances,  and  that  the  introduction 
of  the  evidence  in  question  would  augment  that  prejudice  to  a 
degree  that  might  lessen  his  chance  of  a  fair  trial.* 

We  will  now  proceed  to  the  examination  of  the  question,  how 
far  Deaf  Mutes  are  responsible  for  their  acts  criminally,  and  will 
direct  our  inquiries  first  to  the  common  law  upon  the  subject, 
that  being  the  law  of  this  country  and  of  England,  where  it  has 
not  been  altered  by  statutory  regulations. 

By  the  mode  of  trial  adopted  under  the  common  law,  a  man, 
when  arraigned  for  a  criminal  offence,  must  answer  whether  he 
is  guilty  or  not  guilty ;  for  if  he  admits  himself  to  be  guilty,  no 
trial  is  necessary,  and  judgment  passes  against  him  at  once. 
Now,  it  is  impossible  for  a  mute  to  comply  with  this  regulation , 
and  hence,  at  a  very  early  period  in  the  history  of  the  English 
law,  it  was  found  necessary  to  ascertain  whether  a  person  so 
arraigned,  stood  mute  from  perverseness,  or  through  the  visita- 
tion of  God  ?  This  standing  mute  through  perverseness  was  re- 
garded as  an  offence  to  be  punished  with  the  greatest  severity ; 
because,  as  the  law  then  stood,  a  person  indicted  for  any  offence 
under  treason  could  not  be  convicted,  unless  he  had  plead,  that 
is,  admitted  or  denied  his  guilt;  and,  without  a  conviction,  there 
could  be  no  escheat  or  forfeiture  of  his  lands.  One  accused  of 
crime,  therefore,  who  knew  that  the  evidence  of  his  guilt  was 
ample,  and  that  conviction  must  inevitably  follow  upon  his  trial,  f 


*  In  this  case,  the  second  trial  ordered  by  the  court  resulted  in  an  acquital. 

f  And  we  add  one  innocent  of  the  crime  charged,  who  knew  that  from  the 
power  of  his  accusers,  or  the  prejudice  against  him,  he  had  no  chance  for  a  fair 
trial,  as  was  the  case  with  old  Giles  Cory,  in  the  evil  days  of  the  Salem  Witch- 


72 

had  a  temptation  to  stand  mute,  as  thereby  his  land  would  be 
preserved  to  his  heirs,  and  not  escheat  to  his  lord  or  the  crown. 
It  was,  therefore,  the  object  of  the  law  to  extort  from  such  per- 
sons a  plea  that  would  subject  them  at  once  to  judgment,  or  put 
them  upon  their  trial,  and,  with  that  view,  punishment  more 
rigorous  and  cruel  than  the  immediate  infliction  of  death  was 
resorted  to,  to  compel  an  answer.  The  prisoner  was  remanded 
back  to  prison,  and  left  to  starve  to  death,  unless  he  answered. 
This  horrible  punishment  was  in  some  degree  mitigated  by  a 
statute  of  Edward  I,  (3  Edw.  I,  c.  12,)  at  least  so  as  to  lessen 
the  duration  of  the  prisoner's  sufferings."*  By  the  practice 
under  that  statute,  he  was  "put  in  a  low  dark  room,  laid  upon 
his  back,  without  any  covering  except  for  his  privy  parts,  and 
as  many  weights  were  laid  upon  him  as  he  could  bear.  On  the 
first  day,  three  morsels  of  the  worst  bread  were  given  him ;  on 
the  second  day,  three  draughts  of  standing  water;"  and  so  on, 
alternately,  he  was  supplied  with  this  quantity  of  bread  one  day, 
and  of  water  the  other,  and  kept  in  this  condition  till  he  died, 
or,  as  the  judgment  ran,  until  he  answered.  This  most  barbarous 
statute,  though  long  fallen  into  disuse,  was  not  repealed  till  the 
reign  of  George  III,  when  it  was  enacted  that  persons  willfully 
refusing  to  plead,  should  be  taken  and  deemed  to  have  plead 
guilty.  This  barbarous  punishment  of  the  "peine  forte'  et  dure" 
was  one  of  those  relics  of  feudal  abuses  swept  away,  in  most  of 
the  American  States,  soon  after  the  Revolution. f 

There  is,  we  have  the  satisfaction  of  believing,  no  reason  to 
suppose  that  those  deprived  by  nature  of  the  power  of  speech 
were,  through  ignorance  or  judicial  mistake,  subjected  to  this 
terrible  punishment,  for  it  appears  that  as  early  as  the  reign 
of  Henry  III,  it  was  provided  that  if  the  prisoner  stood  mute, 
the  court  should  immediately  summon  a  jury  to  try  if  he  stood 
mute  through  obstinacy,  or  by  the  visitation  of  God ;  and  this 


craft,  by  a  "barbarous  usage,"  says  the  historian  Bancroft,  "never  again  fol- 
lowed in  the  colonies,  he  was  pressed  to  death  for  refusing  to  plead." 

*  If  a  sentence  to  be  racked  to  death  can  be  considered  a  mitigation  of  one 
to  be  simply  starved  to  death. 

f  It  was  enacted  in  New  Jersey,  in  1795,  "  That  the  law  relative  to  the  peino 
forte"  et  dure  shall  be  and  hereby  is  abolished."  (Paterson,  163.)  Probably,  if 
any  case  had  occurred  in  which  it  had  been  enforced,  it  would  have  been 
abolished  sooner. 


73 

•was  afterwards  made  obligatory  upon  the  court  by  statute,  (8 
Henry  IV,  2.)  If  the  jury  found  that  he  remained  mute  from 
natural  infirmity,  a  plea  of  not  guilty  was  recorded,  and  it 
became  the  duty  of  the  court  to  act  as  his  counsel,  and  see  that 
he  had  law  and  justice — a  practice  which  has  continued  down 
to  our  own  time.  See  the  case  of  the  Commonwealth  of  Massa- 
chusetts v.  Bradley,  (1  Mass.  Rep.  103,)  where  a  prisoner 
indicted  for  the  murder  of  his  wife  stood  mute,  and  a  jury  was 
empanneled  who  found  that  he  did  so  by  the  visitation  of  God. 
And  see  The  King  v.  Pritchard,  7  Car.  &  Pay.  303;  The 
King  v.  Dyson,  ibid,  305,  u.  a.  In  the  State  of  New  York, 
this  inquest  by  a  jury  is  superseded  by  the  provisions  of  the 
Revised  Statutes,  (2  R.  S.  730,  §  70,)  that  if  a  prisoner  does 
not  confess  himself  guilty,  a  plea  of  not  guilty  is  recorded,  and 
he  is  put  on  his  trial. 

What  was  done  in  the  early  days  of  the  English  law,  where 
it  was  found  that  a  prisoner  stood  mute  by  visitation  of  God, 
does  not  distinctly  appear.  Brooke,  whose  work  was  published 
in  1576,  states  the  case  of  a  man  arraigned  for  felony  in  the 
reign  of  Edward  III,  who  could  neither  speak  nor  hear,  who 
was,  therefore,  remanded  to  prison.  (Brooke's  La  Grande 
Abridgment,  Title  Crown,  107,  217.)  The  case  mentioned  by 
this  writer  is  probably  the  one  referred  to  in  the  Year  Books, 
where,  from  the  very  brief  report  that  is  given,  (Book  of  Assize, 
xxvi,  27 ;  26  of  Edw.  Ill,)  it  appears  that  Skip,  Justice,  informed 
his  brethren  that  he  had  a  case  at  the  circuit  of  a  man  indicted 
for  murder,  who  could  neither  speak  nor  hear ;  and  it  would 
seem  that  the  court  did  not  know  what  to  do  in  such  a  case,  and 
finally  concluded  to  remand  the  man  back  to  prison,  upon  the 
statement  of  Hill,  Justice,  that  he  had  a  case  in  which  a  man 
who  was  mad,  furioses  enrage,  slew  four  men,  and  that  he 
would  not  arraign  him,  but  sent  him  back  to  prison,  where  he 
remained  until  the  king  pardoned  him.  Upon  the  authority 
of  this  case,  Crompton,  in  his  work  on  the  authority  and  juris- 
diction of  courts  (1594,)  expresses  a  doubt  whether  a  man  un- 
able to  speak  or  hear  could  be  put  upon  his  trial  for  a  criminal 
offence,  by  reason  of  his  inability  to  plead  to  the  arraingment ; 
and  how  the  law  stood  in  such  cases,  down  to  the  reign  of 
Charles  II,  we  are  unable  to  state.  By  the  common  law,  no 
man  can  be  held  accountable,  criminally,  for  his  acts,  who,  from 


74 

natural  infirmity,  is  incapable  of  distinguishing  between  good 
and  evil.,  (2  Hawkins'  Pleas  of  the  Crown  2,  note  2 ;  1  Hale, 
34 ; )  but  the  Deaf  and  Dumb,  though  they  may  be  in  this 
condition,  are  not  necessarily  so,  as  a  consequence  of  their  in- 
firmity, and  any  positive  rule  of  law  founded  on  that  presump- 
tion, would  be  erroneous.  Whether  a  Deaf  Mute  is  in  this 
condition  or  not,  is  not  a  question  of  law,  but  a  question  of 
fact,  to  be  ascertained  in  each  particular  case.  In  the  cele- 
brated work  of  Sir  Matthew  Hale  upon  the  Pleas  of  the  Crown, 
•which  did  not  appear  till  after  his  death  in  1676,  we  find  the 
law  on  this  point  stated  more  intelligibly  and  rationally  than 
seems  to  have  been  the  case  before  his  time.  "A  man,"  says 
this  great  lawyer,  "  who  is  surdus  et  mutus  a  nativitate,  is,  in 
presumption  of  law,  an  idiot,  the  rather  because  he  hath  no 
possibility  to  understand  what  is  forbidden  to  be  done,  or  under 
what  penalties.  But  if  it  appear  that  he  hath  the  use  of  under- 
standing, which  many  of  that  condition  discover  by  signs  to  a 
very  great  measure,  he  may  be  tried,  and  suffer  judgment  and 
execution,  though  great  caution  is  to  be  used  therein."  (Halo's 
P.  C.  34.)  And  the  view  thus  taken  of  the  law  by  this  eminent 
judge  was  sustained  in  cases  subsequently  adjudged.  The 
question  came  up  directly  for  decision  in  a  case  which  occurred 
at  the  old  Bailey  in  1773,  before  Mr.  Justice  Blackstone,  the 
celebrated  author  of  the  Commentaries.  A  man  named  Jones 
was  indicted  for  felony.  Upon  being  put  to  the  bar,  he  ap- 
peared to  be  deaf  and  dumb.  A  jury  was  accordingly  empan- 
neled,  who  found  he  was  mute  through  the  visitation  of  God, 
but  it  appearing  that  he  was  in  the  habit  of  communicating  his 
ideas  to  a  woman  of  the  name  of  Fanny  Lazarus,  she  was  sworn 
and  examined  as  to  the  fact  of  her  being  able  to  make  the 
prisoner  understand  what  she  said,  and  it  appearing  that  he 
was  capable  of  receiving  intelligence  from  her  by  means  of  signs, 
he  was  arraigned,  put  upon  his  trial,  convicted  and  transported. 
(The  King  v.  Jones,  1  Leach's  Crown  Cases,  102.)* 

To  the  same  effect  was  the  decision  in  the  case  of  Elizabeth 


*  Would  there  have  been  any  remedy  on  the  part  of  the  prosecution  if  the 
prisoner's  intimate  friends  had  refused  to  fulfill  this  unfriendly  office  of  inter- 
preter, thus  aiding  to  procure  the  transportation,  or  possibly  hanging  cf  their 
friend  and  relative  ? 


75 

Steele,  (Leach's  Crown  Cases,  451.)  She  was  indicted  for 
grand  larceny,  and  standing  mute,  a  jury  was  empanneled,  who 
found  that  she  was  mute  by  the  visitation  of  God.  She  was 
then  remanded  to  prison,  and  the  question  was  submitted  to  all 
the  judges  whether  or  not  she  could  be  put  upon  her  trial  for  the 
offence.  The  judges  accordingly  assembled  to  consider  the  case, 
and  were  of  opinion  that  the  verdict  of  mute  by  visitation  of 
God  was  no  bar  to  her  being  tried  upon  the  indictment ;  for  they 
declared  that  although  a  person  surdus  et  mutus  a  nativitate,  is, 
in  contemplation  of  law,  incapable  of  guilt  upon  a  presumption 
of  idiotism,  yet  that  presumption  may  be  repelled  by  evidence 
of  that  capacity  to  understand  by  signs  and  tokens,  which  it  is 
known  that  persons  thus  afflicted  frequently  possess  to  a  very 
great  extent ;  that  great  diligence  and  circumspection,  however, 
ought  to  be  exercised  in  so  critical  a  case ;  and  that  if  all  means 
to  convey  intelligence  to  the  mind  of  such  a  person,  respecting 
the  nature  of  the  arraignment,  should  prove  ineffectual,  that  the 
clerk  might  enter  the  plea  of  not  guilty,  and  it  would  then 
become  the  duty  of  the  court  to  inquire  of  all  those  points 
of  which  the  prisoner  might  take  advantage,  to  examine  all  the 
proceedings  with  a  critical  eye,  and  to  render  to  the  prisoner 
every  possible  service  consistent  with  the  rules  of  law. 

Upon  this  decision  being  given,  the  prisoner  was  again  ar- 
raigned before  Mr.  Justice  Heath,  and  when  the  clerk  put  the 
question  to  her  whether  she  was  guilty  or  not  guilty,  she  an- 
swered "You  know  I  cannot  hear."  The  judge,  upon  the  sup- 
position that  she  could  hear,  said,  "  Your  case  has  been  consid- 
ered by  all  the  judges,  and  they  think,  even  though  you  cannot 
hear,  that  you  should  be  tried  on  the  indictment ;  it  will  there- 
fore be  in  vain  for  you  to  elude  arraignment  by  pretended  deaf- 
ness, for  you  will  lose  by  such  pretence  the  advantage  of  putting 
questions  to  the  witness."  But  all  endeavors  proving  ineffectual, 
a  jury  was  (again)  sworn  to  say  if  she  stood  mute  by  visitation 
of  God,  and  having  pronounced  that  she  did,  the  same  jury 
were  then  sworn  in  chief  to  try  her,  and  the  evidence  being  very 
clear,  she  was  found  guilty,  and  sentenced  to  transportation  for 
seven  years.  It  would  seem  from  the  statement  that  the  woman, 
when  asked  "Are  you  guilty  or  not  guilty?"  answered,  "You 
know  I  cannot  hear,"  that  she  had  lost  her  hearing  at  so  late  an 
age  as  to  retain  the  faculty  of  speech ;  yet  from  the  difficulty  of 


76 

communicating  with  her,  we  may  presume  she  could  neither  read 
writing  nor  read  on  the  lips.  While  the  case  of  Jones  shows 
that  under  the  common  law,  a  Deaf  Mute  from  birth,  yet  not  an 
idiot,  may  be  arraigned  and  tried,  if  one  can  be  found  capable 
of  communicating  with  him  by  signs,  this  case  of  Elizabeth 
Steele  indicates  as  we  understand  it,  that  even  if  there  be  no 
means  of  communicating  to  the  deaf  and  illiterate  prisoner,  yet, 
if  he  appear  capable  of  distinguishing  between  right  and  wrong, 
he  may  be  tried,  the  court  taking  care  that  justice  is  done  him; 
and  if  found  guilty  is  liable  to  the  same  punishment  as  one  pos- 
sessed of  all  his  senses.  We  are  constrained  to  suppose  that 
this  woman  must  have  been  a  notorious  and  inveterate  offender, 
else  the  penalty  inflicted,  seven  years'  transportation  for  simple 
theft,  seems  unreasonably  severe  for  one  in  her  circumstances,  to 
whom  imprisonment  or  transportation,  separating  her  from  all 
with  whom  she  could  hold  intercourse,  must  have  been  far  more 
severe  a  punishment  than  for  those  not  so  afflicted.  While,  there- 
fore, we  cite  these  cases  to  show  that  it  is  the  law  in  England 
and  in  the  United  States  that  Deaf  Mutes  are,  when  they  evince 
an  intelligence  and  ability  to  distinguish  between  right  and  wrong, 
responsible  to  the  law  criminally,  and  may  be  put  upon  trial, 
notwithstanding  the  difficulties  presented  by  the  forms  of  pro- 
ing,  we  would  urge  that  their  unfortunate  and  peculiar  cir- 
stances  should  be  taken  into  consideration  to  secure  mitiga- 
tion or  even  remission  of  punishment,  so  far  as  the  one  or  the 
other  may  be  judged  consistent  with  the  ultimate  good  of  the 
unfortunate  prisoner  on  the  one  hand,  and  of  society  on  the 
other. 

We  recollect  two  or  three  cases  occurring  in  New  York  and 
New  England,  in  which  Deaf  Mutes  were  arraigned  for  criminal 
offences;  but  have  not  the  particulars.  We  will,  however,  cite 
from  Beck's  Medical  Jurisprudence,  the  case  of  Timothy  Hill, 
indicted  for  larceny  in  Massachusetts.  As  in  the  English  case 
of  Jones,  resort  was  had  to  an  interpreter  who  understood  his 
signs.  One  Nelson,  an  acquaintance  of  the  prisoner,  was  sworn 
to  interpret  the  indictment  to  him,  as  it  was  read  by  the  clerk, 
which  he  did,  "by  making  signs  with  his  fingers;"  after  which 
the  court  ordered  the  trial  to  proceed,  as  on  a  plea  of  not  guilty. 
The  report  of  this  case  is  too  brief  and  defective  to  enable  us  to 
judge  what  degree  of  intelligence  Hill  possessed,  or  whether 


77 

the  "signs  on  the  fingers"  were  gestures,  words  spelled  by  a 
manual  alphabet,  or  a  mixture  of  both. 

The  provisions  of  the  common  law  respecting  those  who  stand 
mute,  have  been  incorporated  in  the  statutes  of  some  of  the 
States — as  for  instance,  in  Ohio  and  New  Jersey — without  any 
provision  for  the  case  of  the  Deaf  and  Dumb.  The  statutes  in 
question  direct  that  where  the  prisoner  is  found  to  stand  mute  by 
visitation  of  God,  he  shall  be  remanded  to  prison,  and  not  pro- 
ceeded against  till  he  shall  have  recovered.  We  presume,  how- 
ever, this  provision  would  not  be  held  to  be  applicable  to  the 
Deaf  and  Dumb,  in  whose  case  there  can  be  no  expectation  of 
recovering  the  faculty  of  speech ;  and  therefore  the  rule  of  the 
English  common  law,  already  stated,  will  remain  in  force,  not- 
withstanding the  omission  to  provide  for  the  case  of  the  Deaf 
and  Dumb  in  the  statutes  in  question. 

I  A  more  unsettled  question  under  the  common  law,  is  whether 
judgment  of  death  can  be  pronounced  against  a  Deaf  and  Dumb 
person  when  convicted  of  a  capital  offence.  It  seems  to  have 
been  doubted,  as  they  have  not  pleaded  to  the  indictment,  and 
can  say  nothing  in  arrest  of  judgment.  (4  Blackstone,  324 ;  2 
Hale's  P.  C.  317.)  Both  Hale  and  Blackstone  appear  to  have 
been  in  doubt  upon  the  subject,  and  where  such  authorities  have 
hesitated,  an  opinion  is  not  to  be  expressed  lightly.  But  it  seems 
to  us  that  if  a  man  is  held  to  be  sufficiently  accountable  to  be 
put  upon  his  trial,  and  to  be  convicted  of  a  capital  offence,  that 
it  follows,  from  the  same  reason  of  accountability,  that  he  should 
suffer  the  punishment.  If  he  is  not  responsible  for  what  he  has 
done  for  want  of  capacity  to  distinguish  between  good  and  evil, 
right  and  wrong,  he  is  not  to  be  convicted ;  but  if  he  is  con- 
victed, it  is  a  finding  on  the  part  of  the  jury  that  he  is  account- 
able in  a  criminal  sense,  and  if  he  is,  there  seems  to  be  no  rea- 
son why  he  should  not  suffer  the  punishment  consequent  upon 
his  willful  acts.  It  is  declared  by  the  conviction  that  he  com- 
mitted an  act,  the  nature  of  which  he  comprehended  as  well  as 
those  who  are  possessed  of  the  faculties  of  speech  and  of  hear- 
ing, and  if  he  is  not  to  be  punished  for  it,  why  convict  him  at  all  ? 
If  he  cannot  be  punished,  because  he  is  unable  to  hear,  plead  or 
speak  in  arrest  of  judgment,  (things  which  under  an  amended 
system  of  proceedings,  he  may  do  by  his  counsel,)  why  put  him 
upon  his  trial  ?  Why  not  stop  the  proceedings  at  once,  as  was 


78 

i 

the  case  in  the  early  state  of  the  English  law,  when  it  is  ascer- 
tained that  he  cannot  hear  what  takes  place,  or  speak  for  him- 
self. Either  the  mere  fact  that  he  is  deaf  and  dumb  exempts 
him  from  all  accountability  to  the  law,  whatever  may  be  the 
degree  of  his  intelligence  or  of  his  capacity,  or  it  does  not ;  and 
if  it  does  not,  but  if  he  is  accountable  by  reason  of  his  capacity 
to  discriminate  right  from  wrong,  then,  like  any  other  human 
being,  he  must  suffer  the  consequences  of  his  willful  act.  The 
doubt  entertained  upon  this  subject  springs  out  of  the  tenderness 
of  the  law  towards  the  accused,  where  death  follows  conviction, 
and  the  strictness  with  which  it  insists  on  the  due  observance  of 
every  formality  in  such  cases.  The  law  provides  that  a  prisoner, 
convicted  of  a  capital  offence,  should  be  asked,  before  his  doom  is 
pronounced,  if  he  has  anything  to  say  why  final  judgment — judg- 
ment of  death  should  not  be  rendered  against  him.  The  reason 
given  for  this  proceeding  (The  King  v.  Speke,  3  Salkeld's 
Reports,  358 ;  3  Mod.  265,)  is  that  he  may  have  a  pardon  to 
plead,  or  because  he  has  the  right  at  any  time  after  the  verdict, 
and  before  sentence,  to  move  in  arrest  of  judgment,  if  any 
ground  exist  for  such  motion — such  a  motion  admitting  all  the 
proceedings  upon  the  trial,  but  assuming  or  insisting  that  upon 
the  face  of  the  record  itself,  the  judgment  which  the  court  is 
about  to  pronounce  would  be  erroneous.  In  addition  to  which, 
the  practice  is  adhered  to,  that  the  prisoner  may  have  an  oppor- 
tunity to  address  the  court  in  mitigation  of  his  conduct,  to 
desire  their  intercession  with  the  pardoning  power,  or  to  cast 
himself  on  their  mercy, — appeals  that  are  sometimes  followed 
by  the  recommendation  on  the  part  of  the  court  to  the  executive 
for  a  pardon  or  commutation  of  the  prisoner's  punishment.  But 
justice  is  not  to  fail  because  a  Deaf  Mute,  convicted  as  a  respon- 
sible being,  cannot  make  this  appeal,  or  hear  or  respond  to  the 
enquiry  put  to  him.  If  he  is  able  to  converse  by  signs  or  by 
writing,  the  question  may  be  put  to  him,  and  answered  in  that 
mode.  But  if  he  is  not  able  to  understand  the  question,  even 
put  in  signs,  it  seems  to  result  that  punishment  must  still  follow 
conviction,  to  the  disregard  of  a  form,  compliance  with  which  is 
impossible.  It  is  not  to  be  supposed  that  any  Deaf-Mute 
person,  wholly  deprived  of  the  power  of  communicating  with 
any  one  by  signs  or  otherwise,  shut  out  by  Providence  from 
all  communication  with  his  kind,  would  be  convicted  by  any 


79  .  . 

jury  for  a  criminal  act,  as  a  responsible  being.  A  Deaf  Mute 
is,  in  presumption  of  law,  an  idiot,  not  punishable  criminally  for 
his  act,  until  it  is  shown  that  he  is  endowed  with  sufficient  in- 
telligence to  enable  him  to  discriminate  between  right  and 
wrong,  and  the  burden  of  showing  this  is  upon  those  who  prose- 
cute him,  or  seek  to  bring  him  to  justice.  It  is  impossible  to 
know  this,  unless  there  is  some  means  of  communicating  with 
him,  to  ascertain  what  his  ideas  are,  or  the  nature  and  degree 
of  his  intelligence  ;  and  if  means  exist  for  ascertaining  that, 
sufficiently  to  satisfy  a  jury  that  he  knew  perfectly  well  what  he 
did,  and  that  he  did  it  animo  felonico — that  is  with  a  willful, or 
felonious  intent, — the  same  means  can  be  employed  for  ascer- 
taining his  views  upon  the  question  put  to  him  by  the  court, 
why  judgment  should  not  be  pronounced  against  him.  That  is, 
the  amount  of  evidence  which  would  be  sufficient  to  satisfy  a 
jury  that  he  had  the  requisite  intelligence  to  make  him  accounta- 
ble for  his  acts,  would  equally  establish  that  he  had  sufficient 
capacity  to  understand  the  nature  of  the  enquiry  propounded 
by  the  court,  and  to  avail  himself  of  anything  that  he  might 
think  could  prove  serviceable  to  him.  (And  it  follows  that  if  he 
evidently  has  not  the  capacity  to  do  this,  the  jury  should  find 
that  he  had  not  the  capacity  to  commit  the  crime  charged.)  It 
has  been  shown  moreover  that,  in  all  such  cases,  it  is  made  the 
especial  duty  of  the  court  to  do  all  for  him  that  he  might  do  for 
himself;  to  examine  all  the  proceedings  with  a  critical  eye,  to 
look  for  every  point  of  which  he  might  take  advantage,  to  pro- 
ceed with  the  greatest  circumspection,  and,  in  short,  to  render 
him  every  possible  service,  up  to  the  very  moment  when  judg- 
ment is  rendered  against  him,  that  can  be  done  consistently 
with  the  rules  of  law.  There  is  little  reason,  therefore,  to 
apprehend  that  any  Deaf  Mute  would  be  convicted  and  sen- 
tenced upon  a  capital  charge,  without  having  every  advantage  that 
any  other  prisoner  would  have  upon  a  capital  charge,  except 
that  important  one  of  hearing,  like  ordinary  persons,  all  that 
transpires  on  his  trial,*  and  of  addressing  the  court  by  the 

*  When  we  recollect  how  important  is  this  privilege  to  the  prisoner,  of  hear- 
ing the  evidence  against  him,  as  in  many  cases  he  alone  can  give  a  clue  to 
clear  up  circumstances  that  make  against  him,  we  would  strongly  insist  that, 
where  a  Deaf  Mute  is  tried,  all  the  leading  points,  at  least  of  the  evidence  and 
pleadings,  ought  to  be  communicated  to  him,  either  by  signs  or  by  writing. 


80 

faculty  of  speech.  If  a  Deaf  Mute  has  committed  murder — if  he 
has  taken  life  willfully,  intentionally — that  is,  with  what  the  law 
denominates  malice  aforethought — he  is  not  to  escape  the  punish- 
ment with  which  the  law  visits  the  perpetrator  of  such  a  crime, 
because  he  is  deprived  of  the  faculties  of  hearing  and  speech. 
Every  thing  is  to  be  done  for  him  in  the  course  of  his  trial, 
and  up  to  the  moment  that  sentence  of  death  is  passed  upon 
him,  that  can  possibly  be  done  for  a  person  laboring  under 
such  an  infirmity ;  but  he  is  not  to  escape  the  punishment  due  to 
his  crime,  because  a  form  cannot  be  gone  through  with  on  the 
part  of  the  court,  which  necessarily  could  only  be  intended  to 
apply  to  cases  where  such  a  procedure  was  possible.  If  it  is 
supposable  that  a  Deaf  Mute  would  be  convicted  of  a  capital 
offence,  the  punishment  of  which  was  death,  who  could  not  be 
brought  to  comprehend  the  nature  of  the  enquiry  put  before 
sentence,  then  all  that  can  be  said  is,  that  his  incapacity  to 
comprehend  would  be  no  barrier  to  the  right  and  duty  of  the 
court  to  pass  sentence  upon  him.  In  every  case,  the  enquiry 
should  be  put  and  interpreted  to  the  prisoner,  and  his  answer, 
if  any,  interpreted  to  the  court.  If  he  cannot,  or  if  he  will  not 
be  made  to  understand  it — for  want  of  comprehension  would  very 
naturally  be  assumed  by  a  prisoner  so  situated,  if  he  thought 
thereby  that  he  could  save  his  life — then  the  duty  of  the  court  is 
to  proceed  and  pass  sentence  upon  him.  If  the  court  are  of 
opinion  that  the  jury  were  wrong  in  convicting  him,  they  can 
defer  sentence,  unless  restricted  to  pronounce  it  within  a  certain 
time,  until  the  prisoner's  case  can  be  laid  before  the  executive 
for  pardon ;  but  if  the  executive  will  not  interfere,  the  court 
must  pronounce  judgment,  and  order  execution. 

It  follows  from  this  reasoning,  supplied  to  us  by  an  eminent 
judge,  that  as  the  verdict  of  the  jury,  pronouncing  the  Deaf- 
Mute  prisoner  guilty  of  the  crime  charged,  also  pronounces  that 
he  had  sufficient  capacity  to  commit  the  crime,  therefore  this 
question  of  capacity  is  one  of  the  points  they  are  to  take  into 
consideration.  We  would  suggest,  as  a  question  worthy  of  the 
consideration  of  criminalists  and  jurists,  whether,  as  the  mind 
naturally  revolts  from  inflicting  the  extreme  punishment  of  death 
upon  one  already  laboring  under  an  infliction  so  worthy  of  com- 
passion, whether  a  distinction  cannot  be  made  between  the  capa- 
city to  commit  greater  and  less  crimes  ;  whether  it  might  not  be 


81 

adjudged,  for  instance,  that  a  Deaf  Mute  without  instruction, 
who  knows  nothing  of  the  divine,  and  very  little  of  the  human 
laws  against  crime,  but  whose  passions  make  him  dangerous  to 
society,  may  not  be  adjudged  capable  of  committing  murder  in 
the  second,  but  not  in  the  first  degree.  We  know  of  no  case, 
under  English  and  American  law,  in  which  a  Deaf  Mute  has 
been  capitally  convicted.  In  the  few  cases  of  a  capital  charge 
against  such  persons,  to  be  hereafter  cited,  the  proceedings  were 
stayed  on  points  of  form.  The  provision  of  the  French  law, 
which  empowers  the  jury  to  return  a  verdict  of  "Guilty,  with 
extenuating  circumstances,"  of  which  we  shall  hereafter  give  in- 
stances, thus,  by  saving  the  life  of  the  prisoner,  reconciling  con- 
science with  compassion,  appear  to  us  more  rational  than  the 
practice  under  our  common  law. 

To  make  this  view  of  criminal  jurisprudence,  as  regards  the 
Deaf  and  Dumb,  as  complete  as  possible,  we  will  give  an  account 
of  the  views  entertained  in  Germany,  and  of  the  law  as  there 
established,  respecting  the  legal  responsibility  of  the  Deaf  and 
Dumb,  translated  from  the  work  of  Henke,  one  of  the  leading 
German  writers  on  medical  jurisprudence.  (Lehrbuch  der  Gre- 
richtlichen  Medccin,  von  Adolph  Henke.  Stuttgard,  1832:  7th 
edition,  §§  289,  290,  291.)  "As  it  must  always  be  a  question  of 
doubt  whether  the  Deaf  and  Dumb  are  responsible  beings,  where 
they  have  committed  illegal  acts,  their  mental  condition  should 
be  ascertained  in  most  cases  through  the  instrumentality  of 
teachers  of  the  Deaf  and  Dumb,  educated  in  private  or  public 
institutions,  as  this  class  of  persons  can  more  readily  and  satis- 
factorily enquire  into  the  facts  than  legal  physicians,*  as  they 
are  more  familiar  with  the  condition  of  such  persons,  with  whom 
they  come  constantly  into  contact,  or  the  teacher  at  least  should 
be  consulted  by  the  legal  physician.  (§  290.)  Under  the  de- 
nomination of  Deaf  and  Dumb  are  comprised  not  only  the  Deaf 
who  cannot  speak,  but  those  who  have  learned  to  speak  more  or 
less,  and  those  who  have  lost  their  hearing  too  early  to  acquire 
language  in  the  ordinary  way.  In  consequence  of  the  imperfec- 
tion of  their  senses,  the  Deaf  and  Dumb  must  invariably  be  defi- 


*  In  Germany,  physicians,  denominated  legal  physicians,  are  appointed  by  the 
government  to  enquire  into  and  report  upon  medical  questions  connected  with 


82 

dent  in  regard  to  mental  development  and  cultivation,  and  are 
especially  prone  to  violent  passions,  to  sudden  eruptions  of 
temper,  to  irascibility,  and  are  in  general  cunning,  deceitful, 
unreliable,  and  are  perversely  prone  to  adhere  to  their  purposes. 
(§  291.)  As  respects  their  accountability  to  the  law,  the  Deaf 
and  Dumb  are  on  a  par  with  idiots  and  imbeciles,  unless  their 
natural  infirmity  and  intractability  of  mind  has  been  more  or  less 
removed  by  a  good  education  while  young,  and  even  if  their 
intelligence  is  cultivated,  they  always  experience  difficulty  in 
understanding  others,  and  in  making  themselves  understood.* 
In  respect  to  their  legal  liability  or  accountability  for  their  acts, 
the  following  points  should  always  be  considered :  1.  The  degree 
of  their  mental  infirmity.  2.  Whether  the  law  violated  could  be 
understood  by  them.  3.  Whether  the  exciting  cause  of  the  act 
was  different  in  their  case  from  what  it  would  be  in  the  case  of 
an  ordinary  person.  All  these  questions,  however,  can  be  an- 
swered only  after  a  careful  investigation  of  the  individual  case.f 
The  question,  how  far  uneducated  Deaf  Mutes  are  responsible 
to  the  criminal  law  for  their  acts,  has  often  been  argued  within 
the  last  thirty  years  before  the  French  courts.  One  of  the 
earliest  cases  we  have  met  with  is  recorded  in  Bebian's  Journal, 
(1826.)  An  officer,  with  two  assistants,  went  to  the  house  of  a 
peasant  near  Rodez,  to  serve  an  execution.  While  they  Avere 
making  an  inventory  of  the  movables,  they  discovered  the  peasant 
at  a  distance  endeavoring  to  drive  off  a  cow,  which  was  the  most 
valuable  article  of  his  property.  He  was  instantly  pursued,  and 
soon  overtaken,  knocked  down,  trampled  on,  and  the  cord  by 
which  he  led  the  cow  wrested  from  him.  While  one  of  the 
officers  led  the  cow  in  triumph,  and  another  dragged  along  its 
unfortunate  master  by  the  collar,  the  son  of  the  latter,  returning 
from  his  work  in  the  field,  saw  at  a  distance  the  affray.  This 
was  a  Deaf  Mute  of  about  twenty  years,  tall  and  vigorous. 
Furious  and  indignant  at  the  way  he  saw  his  father  treated,  he 
seized  the  first  club  at  hand,  fell  upon  the  aggressors  with  a 

*  This  view  of  an  intelligent  German  writer  we  commend  to  those  whose 
imaginations  are  taken  by  the  German  system  of  teaching  Deaf  Mutes  to  speak, 
as  more  attractive  than  our  own  system. 

•j-  We  shall  hereafter  give  a  case  of  the  trial  of  a  Deaf  Mute  for  murder,  in 
Rhenish  Prussia,  in  which,  it  will  be  seen,  ho  was  adjudged  not  responsible, 
precisely  on  what  grounds  however  does  not  appear. 


83 

savage  yell,  and  after  a  very  brief  struggle,  put  all  three  to 
flight.  Complaint  was,  of  course,  made  against  father  and  son 
for  rebellion  and  violent  resistance  of  the  officers  of  the  law. 
The  Deaf  Mute,  when  brought  before  the  tribunal,  could  not  be 
made  to  comprehend  that  he  had  committed  any  offence.  He 
supposed  he  was  brought  there  in  honor  to  his  courage.  When 
his  late  antagonists  appeared  in  court,  he  was  with  difficulty 
withheld  from  attacking  them,  and  endeavored  to  explain  that 
he  saw  two  robbers,  who  ought  to  be  punished.  Notwithstanding 
the  grave  nature  of  the  offence,  the  task  of  his  advocate  was  not 
difficult.  All  minds  and  hearts  were  already  prepossessed  in  his 
favor,  and  the  advocate  had  no  difficulty  in  persuading  the  jury 
that  this  youth  was  not  amenable  to  laws  of  which  he  had  and 
could  have  no  knowledge;  that  he  had  only  fulfilled  the  most 
sacred  of  duties,  and  exercised  the  first  of  rights  in  defending  his 
father  and  his  property.* 

In  such  a  case  as  this,  there  can  hardly  be  two  opinions.  But 
though  we  can  readily  admit  that  an  uneducated  Mute  is  not 
amenable  to  the  artificial  laws  of  society,  we  should  still  hold  him 
amenable  in  cases  where  he  violates  rights  in  others,  which  he 
shows  himself  so  prompt  to  defend  in  his  own  case.  The  Deaf 
Mute  of  Rhodez  showed  a  keen  appreciation  of  the  rights  of  pro- 
perty, and  in  uneducated  Mutes  generally  this  sentiment  of  pro- 
perty is  strong.  They  must,  then,  know  that  they  do  wrong  to 
steal ;  and  that  they  are  conscious  of  this  is  farther  proved  by 
the  fact,  that  when  they  do  steal,  they  steal  with  secrecy  and 
contrivance,  like  other  men.  We  cannot,  therefore,  by  any 
means  approve  of  the  defence  set  up  in  several  cases  in  France, 
for  uneducated  Mutes  accused  of  theft,  namely,  that  an  unedu- 
cated Deaf  Mute  is  not  an  accountable  moral  agent.  The  first 
case  we  have  met  with  in  which  this  plea  was  advanced,  is  that 
of  Nadau,  also  recorded  in  Bebian's  Journal,  (p.  42.)  This  un- 
educated Deaf  Mute  was,  in  July,  1826,  brought  before  the 
Court  of  Assizes  of  Paris  for  theft.  He  had  already  been  more 
than  once  brought  before  the  tribunals  for  similar  offences,  and 
had  suffered  a  year's  imprisonment  for  theft.  M.  Paulmier,  a 
distinguished  teacher  of  the  Deaf  and  Dumb,  served  as  inter- 
preter. The  avocat-general  remarked,  that  "the  involuntary 

*  Journal  del'Instruction  des  Sourds  Muets  et  des  Avengles,  Paris,  1826,  p.  39. 


,    84 

interest  that  attached  to  the  accused  ought  not  to  make  us  forget 
the  evidence  of  the  culpability  of  the  prisoner.  It  has  been 
shown  by  the  depositions  of  the  witnesses,  and  by  the  examina- 
tion of  the  prisoner  through  M.  Paulmier,  that  he  had  very  dis- 
tinct notions  of  good  and  evil ;  that  he  hid  himself  to  steal ;  that 
he  hid  himself  to  sell  what  he  had  stolen ;  and,  finally,  that  he 
confessed  with  confusion  the  faults  he  had  committed.  Besides, 
if  we  suppose  that  Deaf  Mutes  have  not  as  precise  moral  ideas  as 
other  men,  this  Nadau  had  already  been  warned  by  several  judi- 
cial condemnations,  that  society  punishes  those  who  steal  the 
goods  of  another.  He  farther  asked  the  jury  to  observe  how 
dangerous  it  would  be  to  grant  impunity  to  the  accused.  It 
would  be  to  deprive  the  unfortunate  Deaf  and  Dumb  of  the  re- 
sources they  find  in  labor ;  for  no  person  would  dare  to  employ 
them  in  his  service,  if  it  should  be  decided  that  the  law  is  im- 
potent to  punish  their  faults. 

M.  Charles  Ledru,  who  appeared  on  behalf  of  Nadau,  rested 
his  defence  on  the  ground  that  a  Deaf  Mute  without  instruction 
is  not  capable  of  a  delict.  He  maintained  that  the  idea  of  jus- 
tice and  injustice  can  only  reach  the  intelligence  by  the  aid  of 
speech,  or  of  words,  resting  especially  on  the  authority  of  M. 
de  Bonald,  to  whose  philosophy  he  took  pleasure  in  rendering 
public  homage.  Supposing  that  the  accused  could  be  held  cul- 
pable after  the  law  of  nature,  he  asked  if  the  civil  law  could  be 
applied  to  a  man  who  could  never  have  known  it.  He  concluded 
by  saying  that  society  could  not  complain  of  offences  committed 
against  her  by  an  unfortunate  whom  she  had  abandoned  to  him- 
self in  the  midst  of  a  world  which  is  to  him  an  inexplicable  mystery. 
Instead  of  imprisoning  the  uneducated  Deaf  and  Dumb,  would 
it  not  be  better  to  instruct  them  ?  This  reasoning  made  such 
an  impression  on  the  jury,  that  Nadau  was  acquitted,  after  a 
short  deliberation. 

This  doctrine,  that  the  idea  of  justice  or  injustice,  or  any  other 
moral  or  religious  idea,  can  only  reach  the  mind  by  means  of 
words,  is,  we  need  hardly  say,  utterly  false  and  groundless.  If 
such  were  the  case,  we  should,  of  necessity,  despair  that  our 
Deaf-Mute  pupils  could  ever  attain  such  ideas.  What  knowledge 
of  words  they  possess  is,  in  most  cases,  acquired  through  expla- 
nations in  gestures  and  in  all  cases  gestures  form  the  readiest 
means  of  explaining  words  to  them.  It  is  absurd,  then,  to  imag- 


85 

ine  that  words,  whose  meaning  they  have  learned  only  through 
gestures,  can  convey  to  them  ideas  for  the  expression  of  which 
gestures  are  inadequate. 

But  though  we  utterly  repudiate  the  philosophy  which  makes 
the  possession  of  a  moral  and  religious  sense  depend  on  the  pos- 
session of  a  verbal  language,  we  fully  admit  that,  with  the  un- 
educated Deaf  and  Dumb,  the  intellectual  and  moral  faculties 
labor  under  great  difficulties  and  disadvantages  as  to  their  devel- 
opment. Some  of  this  class  of  persons  are  hardly  superior  to 
idiots,  and  from  this  low  point,  their  intelligence  and  moral  sense 
vary  over  an  extended  scale,  up  to  nearly  or  quite  the  average 
of  ignorant  persons  generally,  who  are  not  Deaf  and  Dumb. 
Common  sense  teaches  us  that  where  a  Deaf  Mute  commits  a 
wrong,  knowing  that  it  is  a  wrong,  or  at  least  knowing  that  such 
acts  are  punished  when  detected,  he  should  be  punished,  without 
regard  to  metaphysical  speculations  as  to  his  exact  moral  state- 
But  his  unfortunate  condition  may  with  justice  be  urged  in  miti- 
gation of  the  punishment,  and  this  rational  view  is  the  one  now 
prevailing  in  France.  Several  instances  are  recorded,  in  which, 
as  in  the  'case  of  Nadau,  Deaf  Mutes  have  been  acquitted  by 
juries  in  consideration  of  this  supposed  want  of  moral  accounta- 
bility; but,  in  other  later  instances,  the  verdict  has  been  so 
framed  as  only  to  secure  a  mitigation  of  the  punishment. 

M.  Edouard  Morel,  a  very  eminent  French  teacher,  comment- 
ing on  one  of  those  cases  in  which  the  plea  of  want  of  moral 
accountability  had  been  set  up,  justly  observes:  "Unless  he  be 
an  idiot,  every  Deaf  Mute  who,  after  having  committed  a  theft, 
is  brought  before  the  tribunals,  knows  that  he  has  done  wrong  ; 
and  the  advocate  who  is  called  on  to  defend  him,  places  himself 
on  a  false  ground,  when,  to  obtain  an  acquittal,  he  sustains  that, 
deprived  of  hearing  and  speech,  his  client  is  incapable  of  at- 
taining moral  ideas,  and  ought  not,  in  consequence,  to  be  res- 
ponsible for  his  actions. 

"  If  such  a  doctrine  should  come  to  be  prevalent,  and  to  be 
the  foundation  of  our  criminal  jurisprudence,  it  might  involve 
the  most  disastrous  consequences  for  society.  Men  accustomed 
to  crime  would  seek,  perhaps,  for  accomplices  among  uneducated 
Mutes,  and  would  find  in  them  instruments  so  much  the  more 
docile,  that  they  would  be  assured  in  advance  of  their  impunity. 

"  If  I  had  to  defend  a  Deaf  Mute  before  the  courts,  I  would 


86 

carefully  abstain  from  advancing  a  plea  that,  in  order  to  save  a 
guilty  person,  would  slander  the  dignity  of  human  nature,  by 
pronouncing  a  sentence  of  incapacity  against  all  the  Deaf  and 
Dumb  who  remain  faithful  to  their  duties.  I  would  not  fear  to 
avow  the  fault  of  my  client ;  but  I  would  throw  off  the  respon- 
sibility on  society  itself,  which,  by  a  cruel  heedlessness,  has  left 
to  vegetate  in  its  bosom  a  whole  class  of  its  members,  exposed 
without  defence  to  every  temptation  of  passion,  to  every  solicita- 
tion of  vice.  Without  doubt  a  Deaf  Mute  is  culpable  when  he 
commits  a  bad  action ;  but  would  it  be  just  to  treat  him  accord- 
ing to  the  rigor  of  the  law  ?  Can  the  axiom,  The  law  is  held 
to  be  known  to  all,  be  applied  to  a  being  who  is  absolutely  inca- 
pable of  knowing  the  law?"* 

We  may  add,  that  the  Deaf  and  Dumb  themselves,  who  must 
know  what  their  own  views  and  feelings  were  before  instruction, 
warmly  and  indignantly  reject  and  repudiate  the  plea  of  moral 
incapacity  set  up  for  their  uneducated  brethren.  And  we  be- 
lieve it  has  been  generally  abandoned.  The  more  rational  plea 
that  makes  the  misfortune  of  the  Deaf  Mute  criminal  an  extenua- 
tion of  his  fault,  has,  however,  often  been  urged  with  deserved 
success.  For  instance,  a  Deaf  Mute  who  was  accused  of  grand 
larceny,  with  the  aggravating  circumstances  of  night,  and  break- 
ing a  lock,  was,  on  account  of  his  infirmity,  found  guilty  of 
larceny  simply,  without  mention  of  the  aggravating  circum- 
stances, thus  securing  a  much  milder  punishment.f 

The  favor  of  courts  and  juries  may  also  be  justly  invoked  for 
a  Deaf  person  in  cases  where  he  has  acted  under  erroneous 
impressions  natural  to  one  in  his  circumstances.  Deaf  Mutes 
and  Deaf  persons  who  are  not  quite  dumb,  are  often  suspicious 
and  irritable,  from  their  inability  to  hear  and  take  part  in  what 
is  going  on  around  them.  They  sometimes  take  as  intentional 
annoyance  and  insult  gestures  or  practical  jests,  unskillfully 
made,  which  were  merely  intended  as  friendly  pleasantry.  Pi- 
roux  records  the  case  of  Jean-Baptist  Villemin,  a  Deaf  Mute 


*  Piroux'  Journal,  i,  21,  taken  from  La  Gazette  des  Tribunaux,  oflSihDec. 
1838. 

f  Piroux'  Journal,  ii,  151,  case  of  Collett,  -who  robbed  another  Deaf  Mute. 
The  defence  was  that  Collet,  who  had  received  some  education,  might  have  the 
conscience  of  a  bad  action,  but  not  of  the  aggravating  circumstances. 


87 

of  twenty-nine  years,  very  imperfectly  educated  and  of  feeble 
capacity.  Placed  by  the  wealth  of  his  family  above  the  neces- 
sity of  manual  labor,  and  incapable  of  intellectual  labor,  he  fell 
into  dissolute  habits,  wandering  idle  about  the  fields,  and  fre- 
quenting public  houses.  One  night,  in  a  tavern,  he  met  a  man 
named  Marchand,  who  attempted  to  amuse  himself  and  the 
company  by  making  signs  to  the  Deaf  Mute  which  the  latter 
did  not  understand.  Villemin  indicated  by  a  gesture  that  he 
desired  to  be  let  alone ;  but  Marchand  continued  to  annoy  him, 
seizing  his  head  and  making  a  bite  at  his  nose  ;  and  brandishing 
round  his  head  a  cane,  which  he  then  held  in  the  attitude  of 
firing  a  gun,  saying  to  the  company  that  he  wished  to  invite 
Villemin  to  go  a  hunting.  Villemin  naturally  lost  his  patience; 
unable  to  understand  what  was  meant  by  the  brutal  behavior 
of  Marchand,  or  to  express  his  own  sentiments,  except  by 
actions,  he  seized  the  aggressor,  flung  him  on  the  floor,  and 
gave  him  a  kick  on  the  head.  Marchand  was  only  slightly  hurt. 
The  company  declared,  and  he  admitted  that  he  was  himself  to 
blame  ;  and  he  said  he  harbored  no  ill  will  to  Villemin,  for  what 
had  passed.  Returning  home,  a  distance  of  several  leagues  on 
foot,  he  fell  sick,  and  died  of  a  disease  of  the  chest,  which  his 
family  chose  to  ascribe  to  the  blows  he  had  received  from 
Villemin,  which,  however,  was  disproved  by  the  medical  wit- 
nesses. The  Deaf  Mute  was  in  the  first  instance  sentenced  to 
two  months'  imprisonment ;  but  on  an  appeal  to  the  Cour  Roy  ale 
of  Nancy,  in  consideration  of  the  unfortunate  condition  of  Ville- 
min, and  of  the  brutal  and  inconsiderate  conduct  of  Marchand, 
the  term  was  reduced  to  six  days.* 

Other  cases  may  easily  be  supposed  in  which  a  Deaf  person 
may  be  led  to  violent  conduct  by  his  inability  to  hear,  and  to 
understand  what  is  meant  by  others.  An  impatient  man,  for 
instance,  requests  a  Deaf  Mute  to  get  out  of  his  way,  and  not 
knowing  that  the  latter  could  not  hear  his  request,  attempts  to 
shove  him  aside,  thus  provoking  a  manual  retort.  A  Deaf  Mute 
may  also  erroneously  conceive  himself  wronged  in  making 
change,  or  in  price,  weight  or  measure,  and  break  out  into  vio- 
lence. In  such  cases,  we  .are  confident,  there  are  very  few  who 


*  Piroux'  Journal,  i,  4G  and  69. 


vrould  undertake  a  prosecution  for  violence  by  a  Deaf  Mute, 
after  becoming  aware  of  his  peculiar  circumstances. 

The  disposition  of  courts  and  juries  to  mitigate  the  punish- 
ment of  an  uneducated  Deaf  Mute  criminal  has  been  shown  in 
France  and  Germany,  in  several  cases  of  murder,  some  of  them 
of  an  aggravated  character ;  for  it  is  notorious  that  Deaf  Mutes, 
•who  have  grown  to  maturity  without  instruction,  are  too  often 
passionate  and  vindictive.  Be'bian  relates  the  case  of  Pierre 
Sauron,  an  unedcated  Deaf  Mute  of  the  department  of  Cantal, 
who  had  formed  an  illicit  connection  with  the  daughter  of  a 
neighbor.  The  father,  scandalized  by  such  a  connection  with  a 
dumb  man,  undertook  to  put  a  stop  to  it  by  sending  his  daughter 
out  of  the  country.  For  this  Sauron  manifested  the  most  im- 
placable resentment,  and  finally  waylaid  and  murdered  him. 
The  sentence  was  hard  labor  for  life;  for  the  like  crime,  one  not 
deaf  and  dumb  would  have  been  sent  to  the  guillotine.  When 
the  sentence  was  explained  to  the  Deaf  Mute,  he  declared  he 
would  rather  be  put  to  death. 

Another  case  we  find  thus  related  in  the  Ninth  Report  of 
the  Deaf  and  Dumb  Institution  of  Hamburgh  (Germany.)  At 
Cologne,  on  the  14th  or  15th  of  August,  1829,  the  royal  Court 
of  Assizes  was  occupied  by  an  accusation  against  a  Deaf  and 
Dumb  journeyman  shoemaker,  Johann  Schmit,  of  Kreuznach, 
who,  enraged  at  being  upbraided  for  the  defects  of  his  work, 
had  stabbed  his  master  with  a  knife.  The  principal  question 
discussed  was,  whether  the  early  instruction  and  moral  and 
intellectual  state  of  the  Deaf  Mute  made  for  or  against  his 
accountability.  The  jury  found  that  the  unfortunate  murderer 
was  not  accountable ;  and  he  was  therefore  acquitted  of  the 
charge,  and  dismissed  free  into  the  street.  "  This,  (adds  the 
editor  of  the  Hamburgh  Report,)  it  is  to  be  hoped,  was  not  with- 
out that  solicitude  that  might  secure  a  better  education  to  the 
unfortunate  man,  then  twenty-three  years  old,  and  sufficient 
precautions  lest  he  should  become  possessed  with  the  idea  that 
he  could  do  such  acts  with  impunity." 

A  much  more  aggravated  case  than  either  of  the  foregoing  was 
that  of  Michael  Boyer,  an  uneducated  and  vagabond  Deaf  Mute, 
of  about  27  or  28  years,  who  was  brought  before  the  Court  of 
Assizes  of  Cantal,  (France,)  under  the  triple  charge  of  rape, 
murder  and  robbery,  committed  on  a  girl  of  eleven  years,  whom 


89 

he  met  in  a  lonely  place  on  Christmas  day,  1843,  on  her  way  to 
the  residence  of  an  aunt  in  a  distant  village,  with  whom  she  was 
to  spend  the  winter,  in  order  to  attend  school.  Boyer  was 
proved  to  have  pursued  other  females  with  evident  intentions  of 
violence,  and  had  been,  some  years  before,  condemned  to  three 
years'  imprisonment  for  theft.  The  evidence,  though  circum- 
stantial, was  conclusive.  It  is  not  to  our  purpose  to  detail  it. 
We  observe,  however,  that  the  prisoner,  being  interrogated 
through  M.  Riviere,  director  of  the  school  for  the  Deaf  and 
Dumb  at  Rhodez,  denied  energetically  the  principal  facts  imputed 
to  him,  and  succeeded  in  making  it  understood  that  he  main- 
tained that  the  blood  observed  on  his  garments  came  from  a 
wound  in  the  head,  occasioned  by  a  fall  while  in  liquor.  What 
plea  was  by  his  counsel  set  up  in  defence,  we  are  not  informed. 
The  jury  found  him  guilty  of  the  triple  charge,  but  admitted 
extenuating  circumstances — a  verdict  the  effect  of  which  was  to 
save  the  prisoner's  life.  He  was  condemned  to  hard  labor  for 
life  and  to  the  exposition  publique  (pillory  or  stocks.)*  It  should 
be  observed,  that  the  only  extenuating  circumstances  that  appear 
in  the  narrative  of  this  fearful  crime,  were  the  total  deprivation 
of  instruction  and  neglected  vagabond  state  of  the  criminal. 

A  similar  verdict  and  sentence  were  given  in  the  case  of  the 
Deaf  Mute  Emmanueli,  of  Corsica,  who  had  waylaid  and  mur- 
dered the  two  sisters  Ristori,  provoked  to  frenzy  by  the  obstinate 
refusal  of  one  of  them  to  listen  to  his  prolonged  suit.  He  had, 
some  years  before,  killed  her  brother  in  a  quarrel  on  the  same 
account,  and  it  being  considered  that  he  had  acted  with  great 
provocation,  was  only  condemned  to  five  years'  imprisonment — a 
lenity  which  the  commission  of  the  second,  and  far  more  aggra- 
vated, murder  showed  to  have  been  misplaced. f 

The  details  of  another  French  case  of  murder  by  an  unedu- 
cated Mute,  Louis  Chavanon,  may  be  read  in  Beck's  Medical 
Jurisprudence.  This  Deaf  Mute  was  of  such  a  covetous  and 
grasping  disposition,  that  he  harbored  the  most  violent  enmity 
against  any  who  purchased  property  of  his  father.  The  de- 
ceased, Treille,  having  become  possessed,  by  purchase,  of  half 
of  the  house  in  which  Chavanon  lived,  the  latter,  after  repeated 
menaces  in  gestures,  meeting  him  on  the  common  stairs,  an  affray 

*  Morel's  Annales,  ii.  166-170.  f  Piroux'  Journal,  iv.  144. 


90 

ensued  which  ended  in  the  death  of  the  unfortunate  Treille.  The 
sentence  was  ten  years'  imprisonment,  and  a  fine  of  1,000  francs 
to  the  widow  and  children  of  Treille. 

Another  deplorable  instance  of  the  ungovernable  passions  of  too 
many  uneducated  Mutes  is  furnished  by  the  case  of  Pierre  Lafond, 
who,  having  been  repeatedly  detected  in  thefts  of  the  property  of 
his  uncle  and  aunt,  by  whom  he  had  been  adopted  and  brought 
up,  his  aunt  was  at  length  provoked  to  the  degree  of  following 
and  reproaching  him  in  the  presence  of  a  young  neighbor,  of 
whom  Lafond  was  enamored.  Watching  an  opportunity  to  exe- 
cute the  vengeance  that  rankled  in  his  heart,  he  availed  himself 
of  the  absence  of  his  uncle  to  attack  his  aunt  at  night  in  her  bed 
with  several  of  the  shoe  knives  used  by  him  in  his  trade.  Her 
daughters,  coming  to  her  assistance,  were  also  grievously  wound- 
ed, but  providentially  none  of  the  victims  were  mortally  touched. 
Taken  a  day  or  two  afterwards,  wandering  in  the  fields,  Lafond 
alleged,  by  the  aid  of  an  interpreter  conversant  with  his  signs, 
that  he  committed  the  act  under  the  influence  of  a  sudden  fright 
and  hallucination.  However,  neither  this  adroit  defence,  nor  his 
unfortunate  position,  could  make  the  jury  forget  the  aggravating 
circumstances  of  the  case.  He  was  found  guilty,  and  condemned 
to  ten  years  at  hard  labor.* 

The  following  curious  and  interesting  trial  is  translated  from 
Hitzig's  Zeitschrift  fiir  deutsche  und  auslandiche  Criminal 
Richts  Pflege.  Berlin,  1828  : 

A  young  man,  named  Filleron,  was  brought  before  the  Court 
of  Assizes  at  Paris,  in  August,  1827,  charged  wiih  housebreaking 
and  petty  theft.  Deaf  and  dumb  from  his  birth,  he  had  never 
enjoyed  the  advantages  of  education,  and  had  neither  kindred, 
friends,  nor  any  regular  occupation.  Abandoned  by  his  parents, 
he  was  received  into  the  Orphans'  Asylum,  and  afterwards  trans  • 
ferred  to  the  Bicetre,  from  which  he  ran  away.  Since  that  time, 
he  has  lived  in  Paris  entirely  isolated,  without  a  home  or  any 
means  of  support,  except  what  he  received  from  some  Deaf  and 
Dumb  persons.  M.  Paulmier,  the  successor  of  De  I'Epe'e  and 
Sicard  in  the  direction  of  the  Institution  for  the  Deaf  and  Dumb 
at  Paris,  was  employed  as  interpreter,  and  it  was  surprising  with 
what  ease  he  made  himself  understood  by  the  prisoner,  without 

*  Piroux'  Journal,  i.  56. 


91 

the  assistance  of  the  signs  adopted  in  the  Institution.  He  also 
understood  and  explained  the  meaning  of  the  prisoner  with  great 
facility.  Filleron  entered  the  hall  with  a  wrinkled  brow  and  a 
vacant  countenance,  and  having  thrown  a  careless  glance  around 
the  assembly,  he  remained  motionless. 

The  President,  with  the  assistance  of  M.  Paulmier,  asked  him 
his  name.  This  is  the  only  word  of  which  he  knows  the  letters. 
He  answered  by  signs  that  he  was  called  Filleron,  and  signified, 
with  his  fingers,  that  he  was  nineteen  years  of  age.  The  Presi- 
dent desired  that  he  might  be  asked  where  he  was  born.  M. 
Paulmier,  by  motions  and  gestures,  endeavored  to  convey  to  him 
the  idea  of  a  child  in  the  cradle  and  at  the  breast.  Filleron 
made  signs  that  he  had  come  from  a  great  distance,  and  that  his 
father  was  a  mason ;  and  raised  and  lowered  his  hands  several 
times  to  imitate  the  motion  of  the  waves.  M.  Paulmier  explained 
his  meaning  to  be  that  he  was  born  on  the  sea-coast.  M.  Paul- 
mier then  enquired  of  him  his  place  of  abode,  by  laying  his  head 
on  his  hand  as  if  asleep.  For  answer,  Filleron  scratched  his 
hands,  as  if  afflicted  with  a  certain  cutaneous  disorder.  By  this, 
M.  Paulmier  understood  him  to  mean  that  he  lived  in  the  Bicetre. 
The  bill  of  complaint  was  then  read,  which  charged  that  Filleron, 
(after  he  had  ran  away  from  the  Bicetre,  and  had  come  to  Paris,) 
by  creeping  under  a  door,  and  breaking  a  pane  of  glass,  had 
effected  an  entrance  into  the  Orphans'  Asylum,  in  which  he  was 
educated,  and  had  stolen  the  clothes  of  one  of  the  young  men ; 
that  three  days  after  this,  he  again  entered  the  Asylum,  by 
jumping  over  the  wall,  and,  after  having  eaten  in  the  kitchen, 
had  purloined  a  coal  scuttle,  three  copper  stew-pans  and  an 
apron.  These  articles  were  delivered  by  him  to  one  Letertre,  a 
well-known  Deaf  and  Dumb  cook,  who  invites  customers  by  blow- 
ing a  trumpet.  Letertre  had  deposited  the  articles  with  a  wine 
merchant,  who,  having  his  suspicions  awakened,  caused  Filleron 
to  be  arrested.  The  President  desired  M.  Paulmier  to  make 
Filleron  understand  that  he  was  accused  of  the  theft  and  house- 
breaking.  M.  Paulmier  imitated  the  motions  of  a  person  who 
takes  away  a  coat,  and  runs  off;  he  then  pointed  his  fingers  to 
the  accused,  and  then  to  the  officers  of  the  court.  Filleron 
made  a  sign  in  the  affirmative.  M.  Paulmier  repeated  his  ges- 
tures, and  at  the  same  time  imitated  the  movements  of  a  cook, 
who  shakes  a  stew-pan  over  the  fire.  Filleron  signified,  by  lively 


92 

gestures,  that  he  understood  him;  repeated  the  motions,  and  ex- 
pressed with  his  fingers  that  he  had  stolen  three  stew-pans  and  a 
utensil  managed  with  both  hands.  He  was  then  asked  how  he 
effected  an  entrance  into  the  Asylum.  He  now,  by  attitudes  and 
motions,  signified  that  he  had  crept  under  a  door,  broken  a  pane 
of  glass  with  his  knife,  and,  having  passed  through  a  long  pas- 
sage, got  into  the  kitchen ;  that  having  eaten,  he  had  taken  three 
stew-pans  from  the  nails  on  which  they  were  hung,  and,  after 
wrapping  them  in  a  cloth,  had  made  his  escape. 

President.     "Ask  him  where  he  was  educated  ?" 

M.  Paulmier  lowered  his  hands,  in  order  to  convey  the  idea  of 
a  small  child,  and  raised  them  gradually  to  represent  its  growth. 
Filleron  placed  his  hand  on  the  collar  of  his  jacket,  to  signify 
that  he  was  educated  in  the  Orphans'  Asylum,  where  the  children 
wore  grey  jackets  with  red  collars. 

President.  "He  was  sent  away  from  the  Asylum  for  bad 
conduct ;  ask  him  why  he  went  away?" 

Filleron  answered  this  question,  by  signifying  that  he  had  as- 
sumed a  sulky  mien.  He  then  scratched  his  hand,  to  express 
the  idea  that  he  had  been  sent  to  Bicetre. 

President.     "Ask  him  if  he  has  been  employed  as  a  tailor?" 

M.  Paulmier  imitated  the  motion  of  a  person  who  is  sewing. 
Filleron  made  a  sign  in  the  negative,  and  folded  his  arms,  in 
order  to  signify  that  he  had  no  occupation.  He  then  stretched 
them  out,  as  if  he  were  pushing  violently ;  by  this  he  intended 
to  express  the  idea,  that  he  had  worked  at  a  well,  and  turned  the 
wheel. 

President.     "Ask  him  why  he  ran  away  a  second  time?" 

Filleron  expressed,  by  very  intelligible  signs,  that  he  was  tired 
and  had  been  beaten.  He  then  made  a  wry  face,  and  turned  his 
pocket  wrong  side  outwards,  to  signify  that  he  had  not  been  well 
paid. 

President.  "  How  has  he  lived  since  he  ran  away  from  the 
Bicetre?" 

M.  Paulmier  drew  a  large  circle,  to  represent  the  city  of  Paris, 
and  imitated  the  motions  of  a  man  who  is  eating  and  sleeping. 
Filleron  understood  this  at  once,  and  placed  himself  in  an  attitude 
a«  if  blowing  a  trumpet,  and  then  pretended  to  eat,  to  signify 
that  he  had  lived  with  Letertre. 

President.     "Ask  him,  whether,  some  days  previous  to  his 


93 

arrest,  he  did  not  give  five  francs  to  one  of  the  orphan  boys,  who 
Avas  sweeping  before  the  gate  of  the  Orphans'  Asylum. 

M.  Paulmier  showed  him  five  francs,  and  endeavored  to  convey 
to  him  the  idea  of  a  boy  who  is  sweeping,  to  whom  something  is 
given.     Filleron  made  a  sign  in  the  affirmative,  and  expressed, 
by  signs,  that  he  had  obtained  the  money  by  working  at  the  well. 
President.     "Ask  him  why  he  committed  the  theft?" 
It  was  very  difficult  for  M.  Paulmier  to  make  this  understood. 
When  Filleron,  at  last,  comprehended  his  meaning,  he  expressed 
by  signs,  that  he  was  large,  subject  to  hunger  and  thirst,  and 
that  he  must  have  a  pinch  of  snuff. 

President.  "Ask  him  if  he  knows  it  is  unlawful  to  steal." 
M.  Paulmier  acted  as  if  he  would  have  Filleron  take  away  his 
jacket,  pointed  to  the  gens-d'arms  and  the  officers  of  the  court, 
repeated  the  same  signs  pointing  to  himself,  and  then  placed 
himself  in  a  position  as  if  he  were  seizing  a  thief,  and  binding 
his  hands.  To  all  this  Filleron  answered  by  imitating  the  mo- 
tions of  a  man  who  acts  eagerly  to  signify  that  he  was  forced  by 
hunger  to  steal. 

According  to  the  statement  of  the  Commissary  of  Police,  be- 
fore whom  Filleron  was  first  brought,  when  the  stolen  clothes  he 
had  on  were  taken  from  him,  he  evinced  signs  cf  the  greatest 
despair,  and  attempted  to  seize  the  sabre  of  one  of  the  gens- 
d'arms,  and  it  became  necessary  to  bind  him.  He  then  made 
signs  as  if  in  mockery,  and  as  if  he  wished  to  throw  himself 
into  the  water,  or  cut  hi,s  throat.  After  this,  he  bent  his  head 
down  and  wept  bitterly,  and  then  remained  motionless,  and  as  if 
sunk  in  the  deepest  despondency. 

To  the  question,  whether  he  had  broken  into  the  Asylum,  Fil- 
leron answered  by  signs  that  he  had  broken  a  pane  of  glass;  but 
that  it  had  been  broken  before,  and  he  earnestly  insisted  on  this 
last  circumstance.  When  the  stolen  articles  were  shown  to  him, 
he  recognized  them  as  such,  and  made  signs  that  he  was  hungry. 
M.  Paulmier  asked  him  if  he  was  sorry.  Filleron  again  ex- 
pressed by  signs  that  he  was  hungry  and  had  nothing  to  eat; 
and  then  placed  himself  in  an  attitude,  as  if  some  one  were 
pushing  him  and  pointing  out  to  him  some  object.  M.  Paul- 
mier explained  his  meaning  to  be  that  he  was  instigated  by  some 
other  Deaf  and  Dumb  person  to  commit  the  theft.  On  motion 


94 

of  the  Advocate-General  he  was  asked,  whether  he  had  not 
been  already  punished  in  the  Asylum  for  theft.  To  this  he  an- 
swered by  signs,  that  he  was  then  very  small,  and  that  he  was 
allowed  but  a  very  small  portion  of  bread  and  was  hungry.  He 
then  assumed  the  fixed  posture  of  a  soldier  to  signify  that  he 
had  been  punished  in  that  manner. 

President.     "Asked  him  if  he  had  any  idea  of  religion." 

M.  Paulmier  pointed  to  the  heavens  and  placed  himself  in  an 
attitude  of  supplication  and  struck  himself  on  the  breast,  in  sign 
of  guilt.  Filleron  did  not  appear  to  understand  him  ;  but  signi- 
fied that  it  had  been  attempted  to  teach  him  to  read  and  write. 
M.  Magni,  the  Director  of  the  Orphans'  Asylum  stated  that  he 
was  convinced,  that  Filleron  could  not  distinguish  between  good 
and  evil. 

The  second  witness  was  the  Deaf  and  Dumb  cook.  He  was  a 
a  pupil  of  the  Abbe'  de  1'Epde,  and  could  understand  and  make  him- 
self understood  with  greater  facility.  He  appeared  to  be  in 
high  spirits,  saluted  the  court  with  great  civility,  and  at  the  order 
of  M.  Paulmier,  raised  his  hand  with  a  very  significant  expres- 
sion, denoting  that  he  would  open  his  whole  heart.  An  inartic- 
ulate sound,  to  which  he  gave  utterance,  resembled  the  French 
word  oui.  He  expressed,  by  signs,  the  letters  of  his  name, 
Antoine  Alexandre  Letertre,  and  that  he  was  forty-seven  years 
of  age ;  he  then  placed  himself  in  an  attitude,  as  if  he  were 
blowing  a  trumpet,  and  laughed  heartily.  He  expressed,  by 
very  intelligible  signs,  that  he  had  tajjen  the  stolen  articles, 
and  that  Filleron  had  informed  him  that  he  had  received  them 
for  the  purpose  of  getting  them  tinned  over.  He  manifested 
great  abhorrence,  placed  one  hand  on  his  heart,  and  covered  his 
eyes  with  the  other,  and  then  pretended  to  push  back  the  stew- 
pans  that  were  lying  on  the  table  with  violence,  to  signify  that 
he  did  not  know  that  they  had  been  stolen.  He  then  imitated 
the  movements  of  a  man,  who  is  seized  and  bound  to  a  post. 
M.  Paulmier  declared,  that  the  honest  Letertre  well  understood 
that  theft  was  unlawful,  and  that  its  consequences  were  impris- 
onment and  exposure  in  the  pillory. 

Here  arose  a  very  lively  pantomime  between  Letertre  and 
Filleron.  M.  Paulmier  explained,  that  Letertre  asserted,  in 
contradiction  of  Filleron,  that  the  latter  had  said,  he  had 


95 

received  the  stew-pans  for  the  purpose  of  getting  them  tinned 
over. 

President.  "Ask  the  witness  if  Filleron  has  ever  before  de- 
livered to  him  stolen  goods."  Letertre  denied  this,  and  made 
signs  that  he  was  honest,  had  a  good  heart,  and  pushed  the  stolen 
articles  from  him. 

The  other  witnesses  had  nothing  of  importance  to  state. 

The  Advocate-General  contended,  that  notwithstanding  the 
compassion  we  may  feel  for  the  condition  of  the  Deaf  and  Dumb, 
the  law  must  take  its  course ;  that  there  were  Deaf  and  Dumb 
persons,  possessing  intelligence  and  discernment ;  and  that  they 
were  to  be  judged  according  to  the  measure  of  their  under- 
standing. In  conclusion,  he  insisted  that  Filleron  was  capable 
of  distinguishing  between  good  and  evil,  that  he  had  acted  with 
intelligence,  and  must  therefore  be  pronounced  guilty.  The 
counsel  for  the  accused,  in  the  defence,  assumed  the  position, 
that  a  person  Deaf  and  Dumb  from  his  birth,  who  has  never  re- 
ceived any  education,  is  not  amenable  to  the  law.  In  this  con- 
dition, he  cannot  form  any  idea,  for  there  is  wanting  to  him 
wordsy  the  elements  of  all  ideas.  Even  if,  by  a  kind  of  inspira- 
tion and  by  observation,  he  has  acquired  a  knowledge  of  the  con- 
sequence of  evil  actions,  still  it  would  not  be  possible  for  him  to 
choose,  with  a  clear  discrimination,  between  an  action  forced  on 
him  by  a  state  of  extreme  necessity,  like  that  of  the  prisoner, 
and  a  forbearance  of  that  action  for  fear  of  its  consequences. 
He  has  not  that  self  control,  that  freedom  of  will,  upon  which 
all  liability  to  punishment  rests.  His  actions  are  not  to  be 
measured  by  the  standard  of  morality.  But  suppose  this  por- 
tion to  be  untenable,  he  is  not  subject  to  punishment,  according 
to  the  well  established  rule  of  law,  lex  non  obligat  nisi  pro- 
mulgata.  However  great  may  be  his  inclination,  he  cannot  ob- 
tain a  knowledge  of  the  law,  and  the  Apostle  Paul  says,  '  I  had 
not  known  sin,  but  by  the  law ;  for  I  had  not  known  lust  except 
the  law  had  said,  "  Thou  shalt  not  covet."  Filleron  has,  indeed, 
seen  punishments,  executions,  and  gens-d'arms ;  but  gens-d'arms 
are  not  the  flesh  become  law.  Were  the  seeing  such  objects  as 
these  sufficient  to  create  a  liability  to  punishment,  a  criminal 
code  of  laws  would  be  useless,  and  it  would  only  be  necessary  to 
ascertain  whether  the  person  accused  has  ever  passed  by  a 
gallows. 


96 

Filleron  was  acquitted.  He  received  an  earnest  admonition 
from  M.  Paulmier,  which  appeared  to  affect  him.* 

In  the  several  French  cases  that  have  been  cited,  (and  we 
might  have  cited  other  similar  cases  from  Bebian's,  Piroux'  and 
Morel's  Journals,)  no  difficulty  appears  to  have  been  experienced 
in  relation  to  the  formalities  of  a  trial ;  the  questions  that  were 
raised  related  to  the  degree  of  moral  accountability  of  the  Deaf 
and  Dumb.  But  the  few  English  and  Scotch  cases  we  have  are 
mostly  of  a  different  character.  In  these  cases,  the  defence  set 
up  for  Deaf  Mutes  accused  of  crime,  has  generally  turned  on 
legal  forms  and  technicalities.  As  this  paper  has  already  ex- 
tended to  an  unexpected  length,  and  as  the  cases  to  which  we 
refer  can  be  consulted  at  large  in  standard  works,  we  shall  re- 
strict ourselves  to  brief  outlines. 

In  July,  1817, t  Jean  Campbell,  an  uneducated  Deaf  and 
Dumb  woman,  the  mother  of  three  children  by  three  different 
fathers,  was  charged  before  the  Court  of  Justiciary  in  Edin- 
burgh, with  murdering  her  child  by  throwing  it  over  the  old 
bridge  at  Glasgow.  Mr.  Robert  Kinniburgh,  an  eminent  teacher 
of  the  Deaf  and  Dumb,  was  called  in  as  an  expert ;  and  under- 
stood from  her  signs  that  she  maintained  that,  having  the  child 
at  her  back,  held  up  by  her  cloak,  which  she  held  across  her 
breast  with  her  hands,  being  partially  intoxicated,  she  had  loos- 
ened her  hold  to  see  to  the  safety  of  some  money  in  her  bosom, 
thus  allowing  the  child  to  fall  over  the  parapet  of  the  bridge, 
against  which  she  was  resting.  She  indignantly  denied  having 
intended  to  throw  it  into  the  river. 

"  Mr.  Kinniburgh  being  asked  whether  he  thought  she  could 
understand  the  question,  whether  she  was  guilty  or  not  of  the 
crime  of  which  she  was  accused  ?  answered  that  in  the  way  he 
put  the  question,  asking  her  by  signs  whether  she  threw  her 
child  over  the  bridge  or  not?  he  thought  she  could  plead  not 
guilty  by  signs,  and  this  is  the  only  way  in  which  he  could  so 
put  the  question  to  her,  but  that  he  had  no  idea,  abstractly 


*  See  American  Jurist,  vol.  3,  p.  158. 

f  Beck  gives  this  date,  1807,  which  is  a  manifest  error,  as  Mr.  Kinniburgh  of 
the  Edinburgh  Institution  for  the  Deaf  and  Dumb,  which  was  first  opened  in 
1810,  was  called  in  the  case,  and  referred,  in  giving  his  evidence,  to  his  Report 
for  1815. 


97  ~ 

speaking,  that  she  knew  what  a  trial  was,  but  that  she  knew  she 
was  brought  into  court  about  her  child." 

"  John  Wood,  Esquire,  auditor  of  excise,  (who  is  deaf  and 
partially  dumb,)  gave  in  a  written  statement  upon  oath,  men- 
tioning that  he  had  visited  the  prisoner  in  prison,  and  was  of 
opinion  that  she  was  altogether  incapable  of  pleading  guilty  or 
not  guilty;  that  she  stated  the  circumstances  by  signs,  in  the 
same  manner  she  had  done  to  the  court,  (when  questioned  before 
the  court  by  Mr.  Kinniburgh,)  and  seemed  to  be  sensible  that 
punishment  would  follow  the  commission  of  a  crime." 

"  The  court  were  unanimously  of  opinion  that  this  novel  and 
important  question,  of  which  no  precedent  appeared  in  the  law 
of  this  country,  (Scotland,)  deserved  grave  consideration,  and 
every  information  that  the  counsel  on  each  side  could  procure 
and  furnish." 

"  At  a  subsequent  period,  the  judges  delivered  their  opinion 
as  follows  : 

"  Lord  Hermand  was  of  opinion  that  the  panel  (prisoner)  was 
not  a  fit  object  of  trial.  She  was  deaf  and  dumb  from  her  in- 
fancy; had  had  no  instruction  whatever;  was  unable  to  give 
information  to  her  counsel,  to  communicate  the  names  of  her 
exculpatory  witnesses,  if  she  had  any,  and  was  unable  to  plead 
to  the  indictment  in  any  way  whatever,  except  by  certain  signs, 
which  he  considered  no  pleading  whatever." 

The  other  four  judges,  however,  overruled  this  opinion, 
referring  especially  to  a  case  (already  mentioned  in  a  former 
part  of  this  paper)  that  had  occurred  in  England  in  1773,  in 
which  one  Jones,  who  had  stolen  five  guineas,  appearing  to  be 
deaf  and  dumb,  and  being  found  by  the  jury  empanneled  on  that 
point,  to  be  mute  "from  the  visitation  of  God,"  was  arraigned 
by  the  means  of  a  woman  accustomed  to  converse  with  him  by 
signs,  found  guilty  and  transported.  And  it  was  also  observed 
that  it  might  be  for  the  prisoner's  own  good  to  have  a  trial ;  for 
if  the  jury  found  that  her  declaration,  that  she  did  not  intend 
to  throw  her  child  in  the  river,  was  true,  she  would  be  acquitted 
and  set  free ;  whereas,  if  not  found  capable  of  being  tried  for  a 
crime,  she  must  be  confined  for  life.  The  woman  Campbell  was 
accordingly  placed  at  the  bar,  and  when  the  question  was  put, 
guilty  or  not  ?  "  her  counsel,  Mr.  McNeil,  rose,  and  stated  that 
he  could  not  allow  his  client  to  plead  to  the  indictment,  until  it 
7 


98 

was  explained  to  her  that  she  was  at  liberty  to  plead  guilty  or 
not.  Upon  it  being  found  that  this  could  not  be  done,  the  case 
Avas  dropped,  and  she  was  dismissed  from  the  bar  simpliciter. 
Thus,  though  it  is  established  that  a  Deaf  Mute  is  doli  capax, 
no  means  have  yet  been  discovered  of  bringing  him  to  trial." 

Certainly  the  system  of  laws  in  Scotland  must  be  defective, 
under  which  important  leading  cases  are  decided,  not  on  broad 
general  principles,  but  on  mere  formalities  and  technicalities. 

We  find  an  English  case,  similar  in  some  of  the  circumstances 
to  that  just  cited.  In  1831,  a  woman  (Esther  Dyson)  was 
indicted  at  the  York  Assizes  (England)  for  the  willful  murder 
of  her  bastard  child  by  cutting  off  its  head.  Upon  an  arraign- 
ment she  stood  mute ;  a  jury  was  empanneled,  and  evidence  being 
given  that  she  had  always  been  deaf  and  dumb,  the  jury  found 
that  she  was  mute  by  visitation  of  God.  Mr.  Justice  Park  then 
directed  that  an  interpreter  should  be  sworn  to  communicate 
with  her  by  signs,  which  was  done,  and  the  interpreter  explained 
to  her  by  signs  what  she  was  charged  with,  and  she  made  signs 
obviously  imputing  a  denial,  and  which  the  interpreter  explained 
to  be  a  denial.  Justice  Park  then  directed  a  plea  of  not  guilty 
to  be  recorded.  The  interpreter  was  then  directed  to  explain 
to  her  that  she  was  to  be  tried  by  a  jury,  and  that  she  might 
object  to  any  of  the  jurors  if  she  pleased ;  but  the  interpreter, 
as  well  as  another  witness,  stated  that  it  was  impossible  to  make 
her  understand  a  matter  of  that  nature,  although  upon  common 
subjects  of  daily  occurrence  which  she  had  been  in  the  habit 
of  seeing,  she  was  sufficiently  intelligent.  One  of  the  witnesses 
had  instructed  her  in  the  dumb  alphabet,  but  she  was  not  so  far 
advanced  as  to  put  words  together,  and  the  witness  swore  that 
though  she  was  then  incapable  of  understanding  the  nature 
of  the  proceeding  against  her  and  of  making  her  defence,  he 
had  no  doubt  that  with  time  and  pains  she  might  be  taught  to 
do  so,  by  the  means  used  by  the  instructors  of  the  Deaf  and 
Dumb.  Justice  Park  then  directed  that  a  jury  should  be  em- 
panneled to  try  whether  she  was  sane  or  not,  which  having  been 
done,  the  same  witnesses  were  then  examined  and  testified  to 
her  incapacity  at  that  time  to  understand  the  mode  of  her  trial 
or  to  conduct  her  defence.  Whereupon,  the  judge — after  stating 
upon  the  authority  of  Sir  Matthew  Hale,  that  if  a  person  of 
sound  memory  commits  a  capital  offence,  and  afterwards  at  any 


99 

period  becomes  insane,  that  he  cannot  be  proceeded  against 
during  the  existence  of  his  phrenzy,  but  must  be  kept  in  prison 
until  his  incapacity  is  removed;  and  that  where  the  offence 
charged  is  either  treason  or  murder,  that  the  fact  whether  the 
alleged  insanity  is  real  or  counterfeit  is  to  be  enquired  into  by  a 
jury — told  the  jury  that  if  they  were  satisfied  that  the  woman 
had  not  then,  from  the  defect  of  her  faculties,  intelligence 
enough  to  understand  the  nature  of  the  proceedings  against  her, 
they  ought  to  find  her  not  sane.  The  jury  found  that  she  was 
not  sane,  and  she  was  therefore  ordered  to  be  kept  in  strict 
custody  until  the  king's  pleasure  should  be  known.* 

Five  years  afterwards,  in  March,  1836,  a  similar  question 
came  before  Baron  Alderson.  A  man  was  indicted  for  bes- 
tiality. Upon  being  put  to  the  bar,  he  appeared  to  be  deaf 
and  dumb,  whereupon  a  jury  was  empanneled,  who  found  he 
was  mute  by  visitation  of  God.  As  the  prisoner  was  able  to 
read  and  write,  the  indictment  was  handed  to  him  which  he 
read,  and  made  a  sign  that  he  was  not  guilty.  Upon  this  the 
jury  found  that  he  was  able  to  plead,  and  that  point  having  been 
determined,  the  next  question  submitted  to  the  jury  was, 
whether  he  was  then  sane,  and  could  be  put  upon  his  trial  for 
the  offence.  On  the  part  of  the  crown,  evidence  was  given  with 
a  view  of  showing  that,  on  the  examination  before  the  magistrate, 
he  had  understood  the  charge,  and  had  answered  in  writing. 
But  several1  witnesses  swore  that  he  was  nearly  an  idiot,  and  had 
no  proper  understanding ;  and  that  though  he  might  be  made  to 
comprehend  some  matters,  yet  he  could  not  understand  the  pro- 
ceedings upon  the  trial.  In  submitting  the  case  to  the  jury, 
Baron  Alderson  said  that  the  question  was,  whether  the  prisoner 
had  sufficient  understanding  to  comprehend  the  nature  of  the 
trial,  so  as  to  make  a  proper  defence  to  the  charge,  and  that 
three  points  were  to  be  enquired  into.  First, — Whether  the 
person  was  mute  of  malice  or  not.  Second, — Whether  he  can 
plead  to  the  indictment  or  not.  Thirdly, — Whether  he  is 
of  sufficient  intellect  to  comprehend  the  course  of  proceedings 
on  the  trial  so  as  to  make  a  proper  defence — to  know  that  he 
might  challenge  any  of  the  jurors  to  whom  he  might  object,  and 
to  comprehend  the  details  of  the  evidence,  which,  in  a  case 

*  Rex  v.  Dyson,  7  Car.  and  Pay.  305. 


100 

of  this  nature,  must  constitute  a  minute  investigation.  That 
if  they  thought  that  there  was  no  certain  mode  of  communicating 
the  details  of  the  trial  to  the  prisoner,  so  that  he  could  clearly 
understand  them,  and  be  able  properly  to  make  his  defence  to 
the  charge,  that  they  ought  to  find  that  he  was  not  of  sane 
mind.  That  it  was  not  enough  that  he  might  have  a  general 
capacity  of  communicating  on  ordinary  matters.  The  jury 
found  that  the  prisoner  was  not  capable  of  taking  his  trial, 
whereupon  the  Court  directed  that  he  be  confined  in  prison 
during  the  king's,  pleasure.  This  case,  it  appears,  was  considered 
by  several  of  the  judges,  and  the  course  pursued  by  Baron 
Alderson  was  approved.* 

These  two  cases  suggest  the  question,  whether  the  law  ought 
not  to  recognize  and  make  provision  for  that  intermediate  state 
between  full  accountability  and  total  want  of  capacity  to  commit 
crime,  which  cases,  like  that  of  Esther  Dyson,  strikingly  evince. 

If  her  case  had  been  brought  before  a  French  tribunal,  in- 
stead of  staying  proceedings  on  a  point  of  form,  thus  condemn- 
ing to  an  indefinite  term  of  imprisonment  one  who  might  after 
all  be  innocent,  the  trial  would  have  proceeded ;  and  it  would 
have  been  for  the  jury  whether  to  acquit  her  either  as  innocent 
in  fact,  or  not  accountable ;  or  to  find  her  guilty,  with  extenuat- 
ing circumstances.  In  the  latter  case  her  punishment  would 
hardly  be  more  severe  than  the  imprisonment,  perhaps  per- 
petual, inflicted  on  Esther  Dyson  without  trial. 

We  recollect  a  case  that  was  tried  in  Essex  county,  New 
Jersey,  about  twenty  years  since,  in  which  a  man  evidently  deaf, 
and  pretending  to  be  dumb  also,  was  tried  and  convicted  of 
sodomy.  Doubts  were  expressed  whether  the  prisoner  was  both 
deaf  and  dumb,  because  specimens  of  his  writing,  exhibited  to 
the  court,  showed  a  much  better  acquaintance  with  the  sounds 
than  with  the  orthography  of  words.  There  appears,  however, 
from  what  we  recollect  of  the  case,  no  reason  to  doubt  that  he 
was  deaf,  the  most  decisive  test  being  that  the  sentence  of  seve- 
ral years'  imprisonment  at  hard  labor,  though  pronounced  in  a 
loud  voice,  produced  no  effect  on  him ;  but  when  it  was  commu- 
nicated in  writing,  he  showed  evident  signs  of  being  strongly 
affected.  As  he  was  able  to  read  and  write,  his  examination 

*  Rex  v.  Prilchard,  7  Car.  and  Pay.  304. 


101 

•was  at  first  in  writing ;  but,  at  a  later  stage  of  the  proceedings, 
a  Deaf-Mute  interpreter  was  procured.  He  was  a  wanderer 
from  abroad,  whose  previous  history  was  known  only  from  his 
own  account,  and  had  probably  lost  his  hearing  after  learning 
to  read  and  write.  He  appears  to  have  prejudiced  his  own 
cause  by  pretending  to  be  both  deaf  and  dumb ;  since  the  suspi- 
cion thrown  on  the  latter  point  by  the  test  that  he  knew  words 
by  their  sounds,  rather  than  by  their  orthography,  caused  it  to 
be  supposed  that  his  deafness  also  was  simulated  to  excite  com- 
passion. We  mention  this  case,  (of  which  we  have  no  legal 
record,)  for  the  sake  of  observing  that,  in  cases  where  a  person 
pretends  to  be  deaf  and  dumb,  and  to  have  been  taught  to  read 
and  write  in  the  mode  in  which  Deaf  Mutes  usually  are  taught, 
the  best  test  for  detecting  him,  (next  of  course  to  proving  directly 
his  ability  to  hear  and  speak,)  is  by  observing  whether  in  writ- 
ing he  shows  an  acquaintance  with  the  sound  rather  than  with 
the  orthography  of  words.  The  compositions  of  Deaf  Mutes 
are  often  disconnected,  erroneous  in  syntax,  or  obscure  or  im- 
proper in  expression;  but  they  are  not  very  apt  to  make 
blunders  in  orthography.*  A  man  who  writes  idiomatic  Eng- 
lish, even  of  the  homeliest  kind,  with  an  orthography  governed 
by  the  sound  of  the  words,  (e.  g.  I  du  not  no,}  cannot  be  a  Deaf 
Mute,  though  he  may  perhaps  be  deaf  from  childhood. 

From  the  facts  and  reasonings  presented  in  the  course  of  this 
paper,  we  deduce  the  following  general  principles,  for  which 
we  have  obtained  the  sanction  of  some  eminent  members  of  the 
legal  profession,  and  which  are  respectfully  submitted,  as  being 
consonant  to  reason,  and  hence  to  law,  according  to  the  famous 
dictum  that  law  is  the  perfection  of  reason. 

As  a  knowledge  of  words  is  not  necessary  to  moral  and  mental 
development,  a  Deaf  Mute  who  cannot  read  or  write  is  not 
necessarily  more  ignorant  in  matters  that  can  fall  under  his 
personal  observation  or  that  form  the  ususal  topics  of  conversa- 
tion in  signs  between  him  and  his  acquaintances,  than  illiterate 


*  And  when  Deaf  Motes  do  make  blunders  in  orthography,  they  consist  in 
omitting  or  transposing  letters  ;  not  in  spelling  words  according  to  their  sound, 
or  substituting  one  word  for  another  of  like  sound,  unless  so  taught  by  ignorant 
associates. 


102 

persons  who  are  not  deaf  and  dumb.  Hence  a  Deaf  Mute  who 
has  no  knowledge  whatever  of  written  language,  may  yet,  if  his 
dialect  of  gestures  is  sufficiently  copious  and  precise,  possess  the 
intelligence  necessary  to  manage  his  own  affairs,  to  make  all 
civil  contracts,  to  execute  a  deed  or  a  will,  or  to  give  evidence 
in  a  court  of  justice,  proper  precautions  being  taken  that  the 
interpreters,  who  accompany  him  before  the  attesting  notary  or 
magistrate,  are  faithful,  competent  and  disinterested. 

But  as  the  degree  of  intelligence  and  of  moral  development 
in  uneducated  Deaf  Mutes  is  very  various — some  who  have  been 
neglected  in  infancy  being  but  a  step  above  idiots — they  should 
be  carefully  examined  to  ascertain  whether  they  really  possess 
the  necessary  degree  of  knowledge  and  intelligent  will.  And 
where  any  doubt  may  exist,  it  is  advisable  that  teachers  of 
the  Deaf  and  Dumb  should  be  called  in,  as  being  more  able  to 
appreciate  such  cases  than  any  other  persons,  and  usually  more 
expert  in  conveying  ideas  by  pantomime  than  even  the  friends 
of  an  uneducated  Mute  usually  are.* 

Cases  however,  as  we  have  seen,  occur  in  which  the  Deaf 
Mute  has  formed  with  some  intimate  companion  a  peculiar 
dialect,  not  to  be  understood  by  others.  Here  some  person  who 
is  conversant  with  the  dialect  used  by  the  Deaf  Mute  will  be 
the  best  interpreter.  This  is  more  especially  the  case  with  those 


*  The  late  excellent  T.  H.  Gallaudet,  in  an  article  in  the  American  Annals 
of  the  Deaf  and  Dumb,  "  On  the  Natural  Language  of  Signs,"  (vol.  i,  p.  57,) 
states  the  following  fact:  "The  writer  of  this  article,  some  years  ago,  was 
requested,  with  a  fellow  laborer  of  his,  at  the  time,  in  the  American  Asylum,  to 
visit  a  Deaf  Mute  in  a  neighboring  town,  about  eighty  years  of  age,  possessed 
of  some  property,  and  desirous  of  making  a  will.  He  could  not  read,  nor  write, 
nor  use  the  manual  alphabet.  He  had  no  way  of  communicating  his  ideas  but 
by  natural  signs.  By  means  of  such  signs,  exhibiting  a  good  deal  of  ingenuity 
on  the  part  of  the  old  man,  myself  and  companion  were  able  to  understand 
definitely  the  disposition  which  he  wished  to  make  of  his  property  among  his 
relatives  and  friends,  and  thus  to  enable  him  to  carry  his  views  into  effect  under 
the  sanction  of  the  law." 

In  cases  of  a  criminal  charge,  the  nearest  friends  of  the  Deaf  Mute  accused 
would  hardly  be  reliable  interpreters.  In  England,  some  years  ago,  a  Deaf 
Mute,  named  Howitt,  was  charged  with  murder.  His  father  attended  his  exam- 
ination as  interpreter,  but  the  coroner's  jury,  thinking  he  did  not  interpret  some 
very  expressive  gestures  of  the  Deaf  Mute,  adjourned  to  procure  a  more  disin- 
terested interpreter.  Piroux'  Journal,  v,  18. 


103 

Deaf  Mutes  who  retain  an  imperfect  remnant  of  speech,  and 
endeavor  to  understand  what  is  said  to  them  by  the  motions 
of  the  lips,  aided  by  peculiar  grimaces. 

With  respect  to  the  formalities  used,  it  may  be  laid  down  as 
a  general  rule,  that  the  Deaf  Mute  who  can  read  and  write  but 
imperfectly,  or  not  at  all,  should  be  regarded  as  in  the  position 
of  a  German  or  Frenchman,  whose  ignorance  of  our  language 
necessitates  the  employment  of  a  sworn  interpreter  between  him 
and  the  court. 

But  where  the  Deaf  Mute  can  read  and  write  well,  the  best 
mode  is  that  prescribed  in  the  French  code.  In  the  case  of  such, 
reading  supplies  hearing,  and  writing  supplies  speech.  Hence 
it  follows  that  a  paper  presented  to  a  well-instructed  Deaf  per- 
son, calling  his  attention  by  pointing  with  the  finger  to  the 
writing,  should  be  considered  as  read  to  him,  (it  being  under- 
stood of  course  that  there  should  be  sufficient  light  and  sufficient 
legibility  of  writing).  We  think,  however,  it  ought  to  be  spe- 
cially enacted  that  a  legal  service  in  the  case  of  such  persons 
should  consist  in  giving  them  a  copy  of  the  writ  or  notice  to  be 
served,  informing  them  by  writing  of  its  nature  or  contents, 
and  in  the  case  of  Deaf  Mutes  who  cannot  read,  or  but  imper- 
fectly, the  reading  may  be  accomplished  by  the  aid  of  a  compe- 
tent interpreter.  Any  legal  oath  or  obligation  may  be  taken  or 
assumed  by  a  well  instructed  Deaf  person,  by  writing  out  with 
his  own  hand  the  formula  before  witnesses,  with  such  forms  of 
solemnity  as  the  occasion  may  demand  ;  or  by  a  conversation  in 
writing  with  the  officiating  magistrate. 

It  should,  however,  be  generally  understood,  that  many  of  the 
Deaf  and  Dumb  who  have  received  more  or  less  instruction  in 
our  schools,  are  still  but  imperfectly  acquainted  with  written 
language,  and  that  signs  are  the  surest  and  readiest  means  of 
reaching  their  conscience  and  intelligence — the  surest  means 
also  that  they  possess  for  explaining  their  own  meaning  clearly. 

With  respect  to  civil  rights,  the  Deaf  Mute  possesses  all  the 
rights  of  his  fellow-citizens,  whose  situation,  Deaf-Mutism  aside, 
is  the  same  as  his  own.  Imbecility,  insanity,  and,  in  some  cases 
even,  extreme  ignorance  may  disqualify  him  from  making  con- 
tracts, and  necessitate  the  appointment  of  guardians — but  not 
mere  inability  to  write  and  read,  if  he  evinces,  by  means  of 
signs,  the  requisite  intelligence. 


104 

And  before  the  criminal,  as  well  as  before  the  civil  law,  the 
Deaf  Mute  has  the  same  rights,  and  is  subject  to  the  same  ac- 
countability as  his  brother  who  hears  and  speaks.  We  trust  no 
attempts  will  be  made  by  unscrupulous  pleaders,  or,  if  made,  will 
be  successful,  to  deprive  him  of  the  right  to  bear  witness  against 
those  who  have  wronged  him  ;  and,  on  the  other  hand,  while  we 
ardently  desire  to  see  all  the  Deaf  and  Dumb  reach  that  degree 
of  moral  improvement  which  shall  preserve  them  from  crime, 
yet,  when  they  do  come  before  the  criminal  tribunals,  we  do  not 
wish  to  see  them  screened  from  deserved  punishment  by  mere 
technicalities,  or  by  arguments  of  want  of  moral  accountability 
in  the  Deaf  and  Dumb  generally.  The  ignorance  and  neglected 
condition  of  an  uneducated  Deaf  Mute  may,  however,  be  justly 
urged  in  extenuation  of  his  faults,  as  an  appeal  to  the  compas- 
sion of  the  court,  or  of  the  pardoning  power.  And  cases  may 
occur  in  which  a  Deaf  person  has  acted  under  erroneous  impres- 
sions, natural  in  his  circumstances  ;  as,  for  instance,  in  resisting 
legal  process,  believing  it  to  be  unlawful  violence.  In  such  cases 
there  is  evidently  no  more  accountability  than  in  cases  of  hallu- 
cination. 

And  as  it  is  of  great  importance  to  every  man  whose  interests, 
liberty  or  life  are  at  stake  in  a  court  of  law,  to  know,  as  they 
transpire,  the  proceedings  and  evidence  against  him,  we  think  it 
ought  to  be  made  a  rule,  that  in  all  such  cases  an  interpreter 
should  be  assigned  to  the  Deaf  Mute,  who  will  keep  him  advised 
of  at  least  all  the  important  points  in  the  proceedings,  by  writing, 
or  by  the  manual  alphabet  and  signs,  according  as  the  one  mode 
or  the  other  is  more  clearly  intelligible  to  the  prisoner. 


NOTE. 

We  have  not  discussed,  in  the  foregoing  paper,  the  right  of  a  Deaf 
Mute  to  vote,  when  otherwise  legally  qualified,  because  we  had  not  met 
any  case  in  which  that  right  was  contested  or  denied,  (if  the  French 
case,  in  which  the  Deaf  Mute  was  judged  incapable  of  understanding 
the  electoral  oath,  be  excepted,)  till  after  this  report  was  written.  Very 
recently  we  have  met  with  a  paragraph  in  Smith's  History  of  New  York, 
(edition  in  the  collections  of  the  New  York  Historical  Society,  vol.  ii, 


109 

p.  293.)  Of  several  points  "  resolved  by  the  Assembly  in  the  exercise 
of  their  judicial  authority,  respecting  the  qualifications  of  their  own 
members"  on  occasion  of  contested  elections,  in  1761,  the  last  was : 

"  5.  That  a  man  deaf  and  dumb  from  his  nativity  has  no  vote." 

On  this  case  we  make  two  observations.  First,  that  as  a  property 
(we  think  a  freehold)  qualification  was  then  required  for  voters,  the 
Deaf  Mute  (for  evidently  the  resolution  refers  to  a  vote  actually  re- 
ceived or  offered)  was  possessed  of  property,  probably  by  inheritance, 
showing  that,  at  that  time,  Deaf  Mutes  were  practically  considered  in- 
capable of  possessing  property ;  and  second,  that  under  a  system  of  viva 
voce  voting,  which,  if  we  mistake  not,  then  prevailed  in  the  Colony,  as 
it  still  does  in  England,  it  would  be  hardly  possible  for  an  uneducated 
Deaf  Mute  to  give  his  vote,  since  he  could  name  his  candidate  neither 
by  speech  nor  writing.  If  his  intelligence  was  such  that  he  ought  to  be 
admitted  to  vote,  some  special  statutory  provision  would  be  necessary  in 
his  case,  under  a  system  of  viva  voce  voting.  Where  the  voting  is  by 
ballot,  however,  no  such  special  provision  is  necessary. 


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